What They Are Saying: The Affordable Care Act and the Courts

On Monday, a Virginia judge issued a narrow ruling on the constitutionality of the individual responsibility provision in the Affordable Care Act. In two other cases – including a separate case in Virginia -- federal judges looked at the merits of the opponents’ arguments and upheld the law. 12 other challenges to the law have been dismissed by courts across the country. You can learn more about these court cases and the Administration’s arguments here.

In the days following the ruling in Virginia, editorial boards nationwide have examined the decision and the Affordable Care Act’s individual responsibility provision. Here’s what they are saying:

In that sense, what's at stake isn't Americans' cherished "right to be let alone." It's whether they'll continue to be stuck in a system in which millions of uninsured people force those with insurance to pick up at least part of the tab for their visits to the emergency room and for the untreated diseases that they spread. Two other federal judges have held the law to be constitutional for just that reason. As District Judge George Caram Steeh in Michigan wrote in an October ruling, "Far from 'inactivity,' by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for healthcare services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars — $43 billion in 2008 — onto other market participants."

…If the courts consider the mandate in its proper context, they'll see that it doesn't violate the Constitution.

The only reasonable way insurance companies could afford to stop their most noxious practices, such as denying coverage to people with pre-existing conditions or cancelling coverage once someone became seriously ill, was if more Americans shared the risk and insurers got millions of new customers who were required to have coverage.

If the requirement that most Americans buy insurance is thrown out, but the insurance reforms remain in place, premiums would skyrocket for existing policyholders.

The individual mandate once enjoyed significant support among conservatives, who saw it as promoting an ethic of personal responsibility, but the drive to oppose President Obama's signature reform led many of them to abandon that principle and denounce the insurance mandate as big government run amok. They had it right in the first place.

The law certainly has a constitutional basis. Congress has a right to address health care, which accounts for one-sixth of the nation’s economy, and it has a right to regulate an industry that affects everyone.

The health care system in this country long has been inequitable, benefiting large insurance companies. The new law would make strides toward leveling the playing field, fairly spreading the costs, protecting patients’ rights and driving down premiums. That’s a good deal, yet some conservatives are more interested in protecting the insurance industry over the public, claiming the law violates their liberty. But that’s a disingenuous argument.

The reality is that by providing more equity in the system, the health care law isn’t undercutting liberty, it’s actually upholding it.

As a matter of law, Monday’s unsurprising decision by Judge Hudson means the constitutionality question remains unsettled. The final word will come from the U.S. Supreme Court, as has always been expected.

As a matter of fact, however, the question was settled long ago.

Judge Hudson is entirely and demonstrably wrong. His grasp of health care economics and the realities of the marketplace are, to put it charitably, flawed. His ruling is an exercise in sophistry…

…[H]is ruling would be a blow to the vast majority of responsible Americans who already have health insurance. They’ll have to continue footing ever-higher premiums to cover freeloaders who refuse to take responsibility for their own care.

Yet it seems clear that decisions not to buy insurance will, in the aggregate, affect costs in the broader health care markets. We hope higher courts will find that a decision to forgo insurance simply shifts much of the cost for subsequent illness to hospitals, doctors and insured individuals. Taxpayers’ costs would rise to pay for billions of dollars in uncompensated care given to individuals who can’t pay for it…

Virginia’s attorney general had asked the judge to invalidate the entire law if he found the mandate to buy insurance unconstitutional, but Judge Hudson invalidated only the mandate. He said he was following a time-honored rule to “sever with circumspection” by removing only problematic parts of a law.

The attorney general had also asked the judge to stop implementation of the law until a higher court rules on its constitutionality. Judge Hudson sensibly denied that request in part because the crucial provisions of the mandate, the only issue he was addressing, don’t take effect until 2013. Preparatory steps are not irreversible and states should not hang back while this case is being appealed and likely decided by the Supreme Court.

Importantly - and correctly - Judge Hudson, in invalidating the individual mandate, declined to bring down the rest of the law with it, as Virginia had asked. It is true that the individual mandate is key to making numerous other provisions of the law workable, such as the prohibition against denying insurance coverage or charging more to those with preexisting conditions. But Judge Hudson's approach was properly restrained. On the constitutionality of the individual mandate, he made what we consider the wrong call in a difficult case. But he did it in a thoughtful way that will be minimally disruptive to implementing the law and obtaining a final determination on its constitutionality.

Stephanie Cutter is Assistant to the President for Special Projects