In April, a group of Mississippi citizens, including Lt. Gov. Phil Bryant, filed the first private class-action suit to challenge the Obama health-care law. The complaint cites all the legal precedents one would expect, but there is one big surprise: Roe v. Wade.
That’s right: The 1973 Supreme Court decision declaring a woman’s right to an abortion could be a key weapon against Obamacare. The Mississippi lawsuit (Bryant et al. v. Holder) is the first to highlight the inherent contradiction between the new law’s individual mandate and the “zone of privacy” first introduced in Roe.
Most of the legal commentary concerning Obamacare has focused on the important question of whether the law is a legitimate exercise of Congress’s constitutional power to regulate interstate commerce. The law’s supporters rely on New Deal–era precedents that define the Commerce Clause broadly — so broadly, in fact, that Speaker Nancy Pelosi described Congress’s power to regulate health care as “essentially unlimited.”
Strong words. But what Pelosi seems to forget is that every congressional power is limited — by the rest of the Constitution. Therefore, even assuming Congress has the power to regulate health care, it cannot do so in a way that violates fundamental constitutional rights. Congress could not, for example, deny Americans their First Amendment right “peaceably to assemble” even though public assemblies spread germs and, thus, presumably burden the health-care system.
Privacy, like speech and assembly, is a fundamental constitutional right, according to Roe. Although the immediate issue in Roe was abortion, the Supreme Court’s decision created a broad “zone of privacy” that included not only abortion but more generally the right “to care for one’s health and person,” as Justice William O. Douglas stated in his concurring opinion.
In Planned Parenthood v. Casey (1992), the Court described Roe as a rule of “personal autonomy” that protects all “intimate and personal choices . . . central to personal dignity” in matters “fundamentally affecting a person.” Justice Ruth Bader Ginsburg has argued that abortion restrictions violate the constitutional principle that the law cannot treat a woman “as less than a full adult human responsible for her own choices.” Consistent with these broad principles, courts have held that the right to privacy includes, for example, the right to refuse medical treatment — even life-saving treatment — and the right to access acupuncture services.
Because the right to privacy is deemed fundamental, any statute that threatens that right is subject to “strict scrutiny” by the courts. It is difficult to see how the individual mandate would survive such scrutiny. After all, if the right to privacy guarantees our liberty to make “intimate,” “personal” decisions relating to “health,” “dignity,” and “autonomy,” does it not also protect our right not to buy health insurance? If the Constitution prohibits government from dictating decisions that “full adult humans” can otherwise make for themselves, how can the same Constitution authorize Congress to force adult citizens to enter into particular private contracts?
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.