A Critical Analysis of the Constitutionality of Government-Mandated Health Insurance: An Apple a Day Keeps the Commerce Clause at Bay

To the outsider, the American legal system is thoroughly intriguing—bizarre at times yet also marvelous. The process for deciding whether the individual mandate to purchase health insurance is constitutional under the Commerce Clause is no exception. The US Court of Appeals for the Washington, DC, Circuit recently found the mandate to be constitutional.¹ Previously, appeals courts have found the individual mandate to be constitutional (6th Circuit) and unconstitutional (11th Circuit), both in 2-to-1 decisions.^2,3 Although the legal process is fascinating, the premises used in legal arguments have to align with clinical, biological, and ethical realities. In this regard, it is necessary to scrutinize the core justification for the constitutionality of the mandate.

Briefly, the Commerce Clause allows the federal government to regulate “those activities having a substantial relation to interstate commerce.”² In a modern society, if enough steps are evaluated, everything ultimately affects interstate commerce, and thus, theoretically, every aspect of life could be regulated by the federal government. However, Congress' powers are supposed to be restricted to those enumerated by the Constitution. Indeed, “the Supreme Court has staunchly maintained that the commerce power contains outer limits which are necessary to preserve the federal-state balance in the Constitution.”³ Opponents of the mandate to purchase health insurance argue that if the federal government can require that citizens (solely because they are alive) purchase a product from a private firm, then there is no limit to the federal government's power. Conversely, judges and academics⁴ who argue for the constitutionality of the mandate base their arguments on the inevitability of health care: “No one can opt out of illness, disability, and death.”⁵ Everyone will need health care, they argue. The mandate is conceptualized as a way to regulate when payment will be made for a product that everyone will inevitably consume; thus, health care is not an optional product.

To begin with, health care is not a unitary thing. It is merely an umbrella term for untold millions of combinations of diagnostic and treatment interventions. If we received the same 10-cc injection of “health care” for all the different problems that afflict the human body and mind, the inevitability argument would be more reasonable and medical school a whole lot simpler. Furthermore, of importance to the constitutionality of the individual mandate, our contemporary understanding of biology recognizes that all the health care that individuals may receive over their lifetimes is not inevitable. We can make decisions that render us significantly more or less likely to ever need certain types of health care.

Consider the rise of lifestyle medicine, an accepted clinical discipline that affirms the following statement: “significant research [indicates] that modifiable behaviors—especially physical inactivity and unhealthy eating—are major drivers of death, disease, and healthcare costs”⁶ (emphasis added). Indeed, the apple—a common symbol of lifestyle choice leading to good health—forms part of the logo of the American College of Lifestyle Medicine. Similarly, one rationale for public health interventions that usurp individual decision making is that these interventions modify health care consumption,⁷ implying that unhealthy lifestyle choices do affect the need for health care and that decisions not to consume unhealthy lifestyle products can affect the likelihood of disease. To a certain degree, then, health care is an optional product. A compassionate society should provide, for example, obstetric care, but for the legal argument, pregnancy is hardly unavoidable.

Furthermore, the influence that genes have on the propensity for disease is continually being elucidated. Many genetic disorders are obvious from birth (and obvious regarding whether a person will need health care), and, increasingly, tests can be performed for genetic susceptibility to a number of chronic diseases. Therefore, given their genetic makeup, some people would rationally choose not to insure against certain medical conditions. However, the new health care law requires that everyone be covered for the full array of potential diseases as outlined in the Essential Health Benefits package.⁸ Thus, the individual mandate forces people to buy insurance products for a range of conditions that (based on voluntary genetic profiling and autonomous lifestyle choices) are unlikely ever to manifest. It must be stressed that the lack of propensity for disease that some individuals possess is not necessarily fair—it is just a biological reality.

The 11th Circuit declared, “In sum, the individual mandate is breathtaking in its expansive scope.“³ This is no more so than in the requirement for coverage of mental illness, which potentially opens the whole scope of human behavior to regulation. Virtually every dysfunctional behavior can be coded as a mental illness. As we discover the neuropsychological basis of personality and behavioral disorders, it may well be appropriate to conceptualize them as mental illnesses. Furthermore, the Essential Health Benefits package requires coverage of “behavioral health treatment.”⁸ These factors would bring much of what we consider aberrant/criminal/dysfunctional behavior under the reach of the Commerce Clause and therefore under the auspices of federal government regulation. No “inference upon inference” would be needed to complete the nexus between criminal behavior and the Commerce Clause,³ only one direct step.

Mental illness and addiction not only increase the scope of potential regulation but also pose significant challenges to the “inevitability of health care consumption” argument. Most people, for example, are comfortable conceptualizing schizophrenia as a disease. Similarly, mental disorders have a correlate in the brain making them “diseases” to varying degrees. However, every element of the human condition originates in the brain. Vital to the constitutionality of the individual mandate is whether the treatable manifestations of mental illness are all inevitable or whether we have some higher-order control over how we respond to the basic mental dysfunction. Can we make functional choices that limit the manifestation of the mental illness and therefore the amount of treatment needed? This is especially relevant for disorders of addiction. The discipline of neuroethics is helping to inform us about behavior, decision making, and, ultimately, responsibility. Indeed, a recent issue of AJOB Neuroscience was devoted to the topic of free will and agency in neuroscience.⁹ These constructs need to be understood as being heavily philosophical in nature.

Especially relevant to mental illness and addiction (but also relevant to other branches of medicine) is the inherent controversy over many treatment options, which goes to the core of the “inevitability” argument. Appendicitis warrants removal of the appendix. A fractured bone needs fixing. These examples do accord with the inevitability of health care consumption argument. However, for many conditions, the outcomes of certain treatments are speculative at best. It is wholly feasible that many would never voluntarily “consume” certain treatments, even if they had the condition for which the treatment is indicated. The right to forgo treatments that we believe are sheer nonsense is fundamental to contemporary ethics. Should we also have the right to refuse to insure against the same treatments—treatments that other people do want and that will therefore need to be paid for?

Indeed, the individual mandate raises many complex ethical issues, not least concerning the ethical principles of autonomy and justice. Although the intent of this commentary is not to present an extensive coverage of ethical issues, contemporary standards of ethics need to be incorporated into legal decisions. If the insurance mandate is conceptualized as being merely a financing option for the inevitable consumption of health care, then the individual mandate becomes the equivalent of forced participation in a health care intervention (the intervention being the entirety of the “pay by insurance then consume the health care” nexus). Autonomy in the making of one's own decisions about health care is such a fundamental ethical principle that usurping it under the individual mandate demonstrates the limits the Commerce Clause is pushing. Of course, being forced to pay for and being forced to consume treatments are different things, but this difference then demonstrates the uncoupling of insurance and consumption of health care. In other words, if insurance and consumption are indistinguishable, then the ethical implications of forced participation need to be considered as part of the limits of the Commerce Clause. The debate about the ethics of forced intervention in people's autonomous lifestyle decisions on the basis of public health imperatives becomes relevant.⁷

Finally, the inevitability argument is unsustainable regarding those not uncommon, expensive, near end-of-life treatments. There is most definitely an opportunity to “opt out,” as many people do. It would be reasonable to forgo such treatments and, rather than insure against them, instead use the money for other expenditures when one is younger and fitter. In many instances, health care can legitimately be traded off against other forms of economic utility. It would be incumbent on those forcing the mandate to demonstrate that expensive treatments (many of which are almost futile and occur at the very end of life) and diagnostic tests make up such an insignificant percentage of health care expenditure that they can be completely ignored for the inevitability of health care argument.

For a very reasoned and impartial summary of the opposing arguments, readers are encouraged to review Circuit Judge Sutton's remarks (“Concurring in Part and Delivering the Opinion of the Court in Part”) in Thomas More Law Center v Obama.²

Supplemental Online Material

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Author Interview Video