Wednesday, February 23, 2011


Until the validity of the mandatory insurance is settled in the Supreme Court, there will be lower court decisions handed down. There is no question that te Supreme Court will hear at least one appeal or combine several. The issue is important because of the cost impact uponn the economy. (The bold face portions are mine)

February 23, 2011 — A third federal judge has declared that the requirement to obtain health insurance or pay a penalty under the nation's embattled healthcare reform law is constitutional, contrary to 2 other federal judges, who ruled the individual mandate unconstitutional.

US District Judge Gladys Kessler in Washington, DC, yesterday dismissed a suit brought by 5 individuals who argued that Congress has no right under the Constitution's Commerce clause to force them to obtain health insurance coverage, which they desired to do without. Similar to plaintiffs in other cases challenging the Affordable Care Act (ACA), they contended that by improperly regulating "inactivity" regarding health insurance, the ACA opened the door for Congress to require individuals to buy "countless other goods and services."

Also similar to the 2 other judges who have upheld the ACA, Kessler agreed with the Obama administration's position that individuals who decline health insurance are not passive actors because they will eventually need healthcare, and many will gain it free of charge from hospitals and physicians. Such "free riders" disrupt the healthcare marketplace because the cost of this care gets shifted to healthcare providers and, ultimately, insured individuals and taxpayers. In addition, the uninsured shrink the insurance risk pool, driving up premiums for those with coverage.

In a twist on the legal wrangling over the ACA, which appears destined to reach the US Supreme Court, Kessler also rejected the claim by 3 of the defendants that the individual mandate violates a federal law called the Religious Freedom Restoration Act, which prohibits the government from substantially burdening someone's exercise of religion. The 3 plaintiffs stated that having to buy health insurance — "a backup plan," in their words — "conflicted with their faith because it suggested doubt in God's ability to provide for their needs." They also said that ACA did not qualify for a loophole in the Religious Freedom Restoration Act by demonstrating "that imposing the burden upon the person is the least restrictive means of advancing a compelling public interest."

Kessler said in yesterday's ruling that the faith conflict alleged by the plaintiffs does not rise to the level of a substantial burden. She also characterized the goal of improving access to healthcare as a compelling public interest and held that the individual mandate is the least restrictive approach toward achieving it. The plaintiffs, she noted, could not come up with a less restrictive approach "when pressed" at oral arguments in the case.

The plaintiffs were represented by attorneys from a Christian legal advocacy group called the American Center for Law & Justice.


  1. The quid-pro-quo for opting out of insurance coverage is that we, the taxpaying public, need not be obligated to provide it.

  2. The individual mandate as the principal provision of the whole bill needs to be resolved as soon as possible because otherwise the disputes about the bill will cause a lot of problems to people suffering from serious medical conditions.