Legal Commentary

Health insurance mandate as a privacy right violation

By David Kopel

Among the lawsuits filed against Obamacare is a class action in the Southern District of Mississippi. Class representatives, for residents of Mississippi who do not wish to be subject to the health insurance purchase mandate,  include State Senator Chris McDaniel and Lt. Governor Phil Bryant. The complaint is available here, inside a post on Andrew Breitbart?s website. 

The 29-page complaint contains many legal arguments and case citations. As VC readers know, such extensive legal argument is not mandatory in a complaint, but is permissible. Much of the complaint consists of development of the argument that the power to regulate interstate commerce does not include the power to force people to purchase a product. A few items, however, are particularly notable.

18. Plaintiffs do not desire and have no intention to obey what they consider to be an unconstitutional individual mandate . . .

Para. 35: The Constitution gives Congress the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes. The tripartite enumeratation shows that the ?substantially affects? test for regulation of interstate commerce does not imply an infinite power. Since everything affects everything else, at least in some degree, a regulation of Indian or foreign commerce might be justified on the ground that it ?affects? interstate commerce. However, the text separates interstate, foreign, and Indian commerce. ?Had the Founders intended the commerce power to be unlimited, enumerating three categories of commerce for Congress to regulate would have been wholly unnecessary.? (And as Justice Thomas pointed out  in Lopez, the theory of an unbounded interstate commerce power is also contradicted by Article I?s enumeration of a separate bankruptcy power.)

70. . . .the compelled purchase of health insurance also constitutes the ?taking? of private property under the Fifth Amendment to the United States Constitution. Requiring Plaintiffs to devote a penalty or a percent of their personal income for a purpose which they otherwise would not voluntarily choose based on individual circumstances is an arbitrary and capricious ?taking? of property.

74. For the purposes of a substantive due process analysis there is no meaningful distinction between a person who asserts the right to contract or associate with another private entity and a person who asserts the right not to enter a contract or to associate with another private entity. Refusal to enter into a contract in the face of an illegitimate demand for a contract is subject to protection under the Fifth and Fourteenth Amendments to the United States Constitution. Just as a person has a First Amendment Constitutional right, in certain circumstances, to be free from exercising freedom of speech, Plaintiffs in this matter have the Constitutional right to be free from entering a private contract or an involuntary association.

In my view, the most interesting paragraph is this one:

75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act?s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress?s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs? present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.

Indeed, the insurance purchase mandate is considerably more intrusive than other purchase mandates which would become constitutional if the insurance mandate is upheld. For example, if Congress required that every family purchase a General Motors ACDelco automobile battery at least once every 5 years, the mandate would be financially burdensome, but would not necessarily require the disclosure  of any private information. In contrast, the insurance mandate is a mandate for the involuntary disclosure of many of the most intimate details about one?s life?and making that disclosure to a corporation that in effect functions as a highly-regulated public utility, and which will turn the information over to the government under certain conditions.

In your comments, please focus the discussion on the Mississippi class action case.

Full post as published by The Volokh Conspiracy on April 13, 2010 (boomark / email).