The threat to privacy does not end there. Because of the individual mandate, each citizen will be required to divulge, on an ongoing basis, personal medical details to an insurance company. No less an authority than the ACLU describes medical information as “arguably the most personal and private source of data about us” and laments (on its website) that such information is “routinely shared with insurance companies.” Although no one expects the ACLU to lobby for repeal of Obamacare, the organization will, at some point, need to address the individual mandate’s threat to medical privacy.
When the law’s constitutionality is questioned, its supporters are quick to assert that the individual mandate is “structured as a tax” and that the Constitution gives Congress broad power to impose taxes for the “general Welfare.” But taxes are not exempt from strict scrutiny. The Supreme Court has repeatedly held that government cannot use its taxing power to achieve ends that are otherwise impermissible, such as a punitive tax on newspapers holding certain political views. In Casey
, the Court ruled that government must not place an “undue burden” on the exercise of privacy rights. Liberal legal scholars such as Susan Estrich have argued that a tax on abortion would create such an undue burden. The same must be said for any tax that interferes with Roe
’s rule of personal autonomy.
Progressives are in denial about the tension between the right to privacy and mandatory health insurance. In an interview posted online, Erwin Chemerinsky, dean of the law school at the University of California–Irvine and a prominent liberal scholar, belittled constitutional challenges to the health law as based on “some notion of a right not to buy health insurance. No such right exists.” When professors who usually espouse a “living Constitution” philosophy suddenly become strict constructionists, it’s a sure sign that their position has become untenable.
Let us hope that Bryant v. Holder reaches the Supreme Court. If there is any logic left to constitutional law, the justices will have a narrow choice: either strike down the individual mandate or overturn the broad privacy right created by Roe and its progeny. It’s what you might call a no-lose situation.
– Adam Freedman, a lawyer, is the author of The Party of the First Part (Macmillan) and hosts the “Legal Lad” podcast.