JONATHAN COHN OCTOBER 18, 2010
The lawsuits challenging health care reform rest on a few key arguments, perhaps none more important than the idea that requiring people to get health insurance encroaches on personal liberty. As the argument goes, every American should have the right to choose whether or not to buy health insurance. Government has no more business requiring people to get coverage than it does requiring them to buy a car, shop at certain grocery stores, or go to the movies.
Last week, a federal judge in Florida agreed to let one of those lawsuits move forward and, in the process, indicated he's sympathetic to that argument. "Those who fall under the individual mandate either comply with it, or they are penalized," Judge Roger Vinson wrote. "It is not based on an activity that they make the choice to undertake.
Today, at the Atlantic's web site, journalist and legal scholar Garrett Epps points to the flaw in this argument:
One can agree with Judge Vinson up to a point and still believe he got the issue completely wrong. The tax penalty imposed by the new legislation on individuals who refuse to insure their families really isn't based on something most of them can choose to do or not to do. It's based on something they almost certainly do not, and probably cannot, refuse to do: consume health care services. No matter how thrifty and antisocial any of us may be, no matter how devoted to homeopathy and Yoga, eventually virtually all of us will end up in an emergency room, hospital, or hospice. Even if by extraordinary effort we prevail on others to stand by and allow us to bleed out on the rumpus-room floor, we usually cannot convince them, no matter how earnestly we plead, to let our children die; state law will require they be treated. And someone will pay the cost. That you were "inactive" in getting them the care your children require should not exempt you from being the one who pays their bills.
Before health reform opponents decided that health care is not commerce, they used to point out that health care consumes one-sixth of our gross domestic product. The argument that we aren't affecting commerce is like the argument that a segregated Ollie's wasn't influencing commerce. Of course it was; of course we are. The only real issue, as the government has pointed out, is how and when we will pay for the services we will consume.