HOW DID WE END UP MAKING PEOPLE BUY PRIVATE HEALTH INSURANCE? IS IT CONSTITUTIONAL? ONE LAWYER’S VIEW

The debate and the litigation over Obamacare and its “individual mandate” has been cast in traditional left/right terms. Those on the left favor requiring persons to buy health insurance so that it is possible to insure everyone, including those with pre-existing conditions. Those on the right oppose it as an unacceptable intrusion by government into the lives of Americans by requiring them to buy a product they may not want.

I consider myself a progressive, and I have serious misgivings about the individual mandate, legally and otherwise. Our country, unfortunately, has a system in which private insurance companies, operating at a profit, are the means we have to access health care. This has proved far more expensive than systems like that in Canada, where a government-run plan paid for by taxes provides free medical care to all. In addition to the expense, our privately financed and run health care system pits the provider, the insurer and the patient against each other. The provider seeks to charge as much as possible, the insurer seeks to avoid coverage, and the patient is at the mercy of both.

One response has been for people to opt out of the system altogether, and accept the risk of being uninsured in the face of serious illness. Some do so because they cannot afford private insurance (or do not want to belt-tighten when it comes to necessities like food and education) and do not qualify for Medicaid. Others do so because they consider the risk a better alternative to entering the health insurance market.

This is the context in which the government – which has failed for generations to come up with an affordable, compassionate and medically sound system -- seeks to force citizens to pay and participate. This is the “solution” they have come up with.

Now, it is true that we live in a profit-based economic system, whether we like it or not. A rationale for such a system is that people are free to participate when and how they want to. You don’t have to get cable TV or a new car if you prefer to spend your money some other way.

Obamacare and its individual mandate is the worst of both possible worlds. It is a for profit system in which you do not have the freedom of choice that free enterprise promises.

Is this constitutional?