A poor decision

Wednesday, Dec. 15, 2010 | 2:01 a.m.

A federal judge in Richmond, Va., ruled Monday that a key provision of the historic health care law is unconstitutional. Judge Henry Hudson, a George W. Bush appointee, said the “individual mandate,” which requires most Americans to purchase insurance, was beyond the “historical reach” of the Constitution’s Commerce Clause, which gives the federal government power to regulate interstate commerce.

The judge said the matter came down to “an individual’s right to choose to participate,” agreeing with the Republican Party, which has argued the law infringes on people’s liberty by forcing them to do something against their will. Hudson wrote that no federal court had “extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Conservatives cheered the ruling, and Republican leaders in Congress once again pledged to repeal the law, citing the judge’s opinion as a major victory. But before conservatives get too giddy, they should remember that Hudson’s ruling comes after two other federal judges have ruled in two separate, but similar, cases that the law is constitutional. The judges, both Bill Clinton appointees, dismissed complaints that the law was a case of Congress overstepping its bounds nor was it taking away people’s liberty.

In October, Judge George Steeh in Detroit said the law doesn’t force people to participate in anything they don’t already take part in. Steeh argued that everyone, minus those who decline treatment due to religious concerns, gets health care at some point, whether or not they have insurance. People who don’t buy insurance make an “economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance,” Steeh wrote.

But their decision to forgo health insurance affects interstate commerce significantly because the law requires emergency rooms and public hospitals to treat all people, no matter their ability to pay. “The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers,” Steeh wrote. The cost shift is significant. Steeh said it totaled $43 billion in 2008.

Judge Norman Moon in Lynchburg, Va., last month made a similar ruling, determining that because of the cost shifting, there is “a rational basis for Congress to conclude that individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market.”

The absence of the individual mandate, Moon wrote, “would increase the cost of health insurance and decrease the number of insured individuals — precisely the harms that Congress sought to address.”

Indeed.

With other cases challenging the constitutionality of the law in the courts, and appeals planned in these cases, the issue likely won’t be decided until it gets to the Supreme Court.

The law certainly has a constitutional basis. Congress has a right to address health care, which accounts for one-sixth of the nation’s economy, and it has a right to regulate an industry that affects everyone.

The health care system in this country long has been inequitable, benefiting large insurance companies. The new law would make strides toward leveling the playing field, fairly spreading the costs, protecting patients’ rights and driving down premiums. That’s a good deal, yet some conservatives are more interested in protecting the insurance industry over the public, claiming the law violates their liberty. But that’s a disingenuous argument.

The reality is that by providing more equity in the system, the health care law isn’t undercutting liberty, it’s actually upholding it.