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.