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Those challenging the ACA in court profess deep concern about government forcing citizens to buy insurance or pay a fine.  The fundamental harm here is monetary; it’s about being required to purchase insurance, not to use it (or to get any medical care at all).

If the Court agrees with them, why can’t there be a parallel monetary right not to be bankrupted by health care costs?  In the 1973 case San Antonio School District v. Rodriguez, the Supreme Court decided, by a 5-4 vote, that children did not have a constitutional right to education.  But at that time, at least four justices thought the state was obliged to make a decent education available to all.  Why can’t a future Court do the same for health care?

If the current Supreme Court were to declare the ACA unconstitutional, it would need to abandon several landmark precedents.  That’s not a problem for the Roberts Court; it’s already jettisoned once-venerable holdings on campaign finance, equal protection, antitrust, and voting rights.

For many Americans in these tough economic times, rights to education, housing, health care, and food are a lot more meaningful than the right to be free of an insurance mandate.  We the people can locate these ideals in a Constitution and a Declaration of Independence rich with grand and sweeping language.  If the ACA’s opponents can use our nation’s founding texts to undermine the ACA, those who care about meeting basic human needs need to gear up to use them to do quite a bit more.

Frank Pasquale, JD, Editor-in-Chief of Health Reform Watch, is the Schering-Plough Professor in health care regulation and enforcement at Seton Hall Law School and is the Associate Director of the Center for Health & Pharmaceutical Law & Policy. He has distinguished himself as an internationally recognized scholar in health, intellectual property, and information law and has made numerous academic presentations at universities across North America and at the National Academy of Sciences.

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6 Responses for “A Constitutional Right not to Be Bankrupted”

  1. joe says:

    this is an embarrassing post from an attorney.

  2. “For many Americans in these tough economic times, rights to education, housing, health care, and food are a lot more meaningful than the right to be free of an insurance mandate.”

    Variations on this argument have been used, and are used, to strip citizens of many other freedoms. Somehow, it always ended up in a disaster, and fortunately for all of us, in a reversal.

    We need universal health care, perhaps through universal insurance, but not necessarily. I don’t see any compelling reason to give up any freedoms in order to achieve what should be a basic human right.
    The individual mandate is poised to enhance actual health care, as much as the NDAA will enhance homeland security.

  3. Tim says:

    Why stop with these rights? I think I have a right to eat the food you eat, and live in a house as nice as yours, and drive a car as nice as yours — all paid for by “the government”.

    Prove me wrong — by your logic.

    • BobbyG says:

      You can “think” (assert) whatever you like, as loudly and long as you like (a function of your 1st Amendment right). Rights exists to the extent that a society agrees to abide/enforce them (even the ostensibly “inalienable” ones). These differ from time to time and nation to nation.

      Your “logic” is that of Line Drawing Fallacy 101.

  4. Jaxton says:

    The ACA does what every other act put out by this administration has done… the exact opposite of what its name implies. There is nothing affordable about rates going up, taxes going up, costs going up.

    Do we have a right not to be bankrupted by health care costs? No. Just like I don’t have a right to my job if I can’t perform its duties and I don’t have a right to vote if I can’t prove who I say I am.

    Healthcare insurance has not always been a given. It is a relatively recent perk provided by employers that has since become an expectation that an up and coming soundbite-generation demands.

    Tough cookies. Get a job, work hard, and if you get benefits… great. If not, find a job that you can, or make enough to pay cash, but stop burdening the rest of us with these costs through the proxy of government.

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