So far, the spirited public argument over the health care reforms put forward by Congressional Democrats and defended by President Obama has had the character of a policy debate. That is, the arguments on all sides have focused on whether such reforms would be helpful or harmful, just or unjust. Conservatives have argued that the reforms will make American health care more inefficient and costly, while liberals hold that they will expand coverage while controlling costs. Some on the left hold that a just society must find a way to provide health insurance for all of its members; some on the right question the justice of making some citizens carry the costs of other citizens’ health care.

Recently, however, David B. Rivkin, Jr. and Lee A. Casey have introduced another kind of argument, one about the constitutionality of the Democratic proposals. Where, they ask, does Congress get the authority to impose the reforms it is entertaining? They do not contend that Congress is powerless in relation to the health care industry, for the Constitution’s grant of power to Congress to regulate “commerce among the several states” provides an obvious basis for much of the reform plan under consideration. Nevertheless, Rivkin and Casey note an interesting constitutional question about one key element of any sustainable reform: the “individual mandate,” or the requirement that individual Americans obtain health insurance. Such a requirement may be essential to the success of a “public option” or government-sponsored health insurance plan since without the requirement such an entity would not have access to a sufficient pool of premiums to cover its costs. But it is far from clear that Congress has a power to compel individuals to purchase health insurance. The commerce power is the obvious constitutional provision to which reformers might appeal, but an individual who has declined to purchase health insurance is not by that omission engaged in interstate commerce and therefore seems to be beyond Congress’s reach. Reformers might then contend that Congress has a recognized authority to regulate whatever influences interstate commerce, but, as Rivkin and Casey argue, pushed far enough that claim would result in a limitless commerce power, a notion that the Supreme Court has repudiated in cases such as U.S. v. Lopez (1995) and U.S. v. Morrison (2000).

Regardless of whether their reasoning would be compelling enough to induce the current Supreme Court to strike down some portion of health care reform (if such reform is enacted by Congress), Rivkin and Casey have performed an important public service by raising this kind of argument. For it is no small measure of the corruption of our public discourse that most political leaders and citizens no longer ask what constitutional provisions, if any, authorize Congress to act when some of its members propose to “solve” some national “problem.” We are too often preoccupied with policy arguments while simply assuming a congressional authority to act, as if the federal government had comprehensive responsibility for the common good of the nation. Such an assumption, however, is alien to the Constitution. For Congress to mandate health insurance coverage for individuals raises questions not only about the scope of the commerce power, but also about the constitutional liberties of individuals.

The Supreme Court has held that individuals have a right to refuse medical treatment, even when such treatment is necessary to preserve life. Such a right has no clear foundation in any Constitutional provision, and it appears to be bound up with the dubious history of the “right of privacy” devised by the Supreme Court over the last forty years. Accordingly, those who take the Constitution seriously would properly decline to use such a right to oppose an individual mandate. Nevertheless, the general acceptance of such a right on the left at least raises interesting problems for those who support the health care reforms currently being put forward. One might ask them: if the government cannot compel you to accept health care, how can it compel you to carry health insurance? Of course, they might respond that the issues at stake in the two situations are in fact very different. After all, it is far more of an intrusion on personal liberty for government to force health care on a person than it would be for government to require him to be prepared to purchase such health care if he should need and want it. Nevertheless, one could frame the comparison in another way, one which calls into question the propriety of an “individual mandate.” For if government cannot compel you to accept even medical care that will certainly prevent your death, why should it be permitted to compel you to purchase health insurance to provide for all manner of uncertain and lesser evils?

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Putting aside such questions for the moment, the Democrats’ plan has a deeper problem, one arising in relation to a right expressly protected in the Constitution. An “individual mandate” to purchase health insurance raises questions regarding the clause of the First Amendment that protects the “free exercise of religion.” The sincerely held religious beliefs of some Americans forbid them from making use of modern medicine. One wonders, then, whether the government can, consistent with the Free Exercise Clause, compel such persons (especially if they are adults) to make use of modern medicine. If it cannot, then one wonders further whether it can properly compel them to insure themselves with a view to obtaining such care as their consciences forbid them to use.

It might be objected that such questions will only arise in relation to a very small number of Americans. Another aspect of health care reform, however, has the potential to impinge on the Free Exercise interests of a far larger segment of the population. Opponents of Democratic health care proposals have contended that benefits offered pursuant to these reforms will include abortion. President Obama, however, has loudly and repeatedly denied this (for example, see here). Specifically, the President asserted that under the proposed reforms taxpayer dollars will not be used to fund abortions. He has also, however, denied that a “public option” would be subsidized by taxpayer dollars at all, since that would place it at an unfair advantage against private plans. The President has chosen the words of his abortion-funding denial with care. For his formulation leaves open the possibility that a public option will cover abortion, but that under it these abortions will be paid for not by taxpayer dollars but by the premiums of the members in the plan. Such suspicions gain force when one asks how likely it is that a Democratic Congress would enact a public option that expressly excludes coverage for abortion. If this is in fact what President Obama means, then he hasn’t ameliorated the concerns of pro-life Americans at all. For on this scenario, a government-sponsored enterprise (and one that will probably have required an infusion of public capital in order to get started) will be supporting abortion, even if taxpayer dollars are not directly being appropriated to fund abortions. Abortion will be treated by the federal government not just as a private choice that it will not forbid, but as an action it is endorsing and supporting as legitimate. More important, for the purposes of the present argument, such a scheme will raise a Free Exercise question. For if there is a public option that provides abortion services, and if the federal government requires all Americans to purchase some health insurance, then many Americans will be effectively forced into a health plan that, contrary to their religious convictions, uses their insurance premiums to subsidize other people’s abortions.

It might appear that I am raising these concerns in order to advocate, or at least invite, a kind of conservative judicial activism—one that would, on the basis of uncertain constitutional arguments, strike down a law that will have been enacted through the ordinary processes of representative self-government. Let me be clear that I do not mean to suggest that arguments such as those sketched above would authorize the Supreme Court in striking down an “individual mandate,” if a case challenging such a policy came before the justices. After all, it must be admitted that these arguments involve many difficulties. The Court, as I suggested, may have been mistaken to posit a constitutional right to refuse medical treatment, and it might properly choose not to push that right any further. In any case, it could surely find some grounds on which to plausibly distinguish compelled treatment from compelled insurance. Moreover, in relation to the Free Exercise clause, the Court has usually followed a sensible rule according to which even laws that indirectly impinge on free exercise are justified if they have a legitimate secular purpose. Such a rule is sensible because compulsory support of many essential government activities—such as carrying on war—will inevitably impose on some people’s consciences, at least indirectly. Laws that directly and intentionally impose burdens on free exercise present a very different case, but infringing on anyone’s religion is surely neither the direct effect of health care reform nor Congress’s intention in considering it.

Nevertheless, if such arguments should not sway a court, they should be weighed very carefully by citizens and statesmen. For if it is the business of the courts to protect us from the most egregious violations of the Constitution, it is nevertheless the business of citizens and statesmen to rise to the level of an even higher respect for our fundamental law. It is proper for courts not to strike down laws of questionable constitutionality unless there is a compelling reason to do so, but it is proper for legislators not to enact, and citizens not to support, constitutionally questionable laws unless there is a compelling reason to do so. We should recognize, therefore, that regardless of whether a right to decline medical treatment is certain enough to justify an exercise of judicial review, it is surely related to the concern for individual liberty that is vital to the American constitutional tradition. Furthermore, even if mandatory health insurance represents only an indirect burden on the free exercise of religion, it is nonetheless true that free exercise is a fundamental, and explicitly acknowledged, constitutional value. We should therefore hesitate before we support any public policy that would endanger these fundamental values.

Our hesitation, moreover, should be especially long and thoughtful when the proposed policy is to be enacted by the federal government rather than by the government of a state. For when a state policy threatens to intrude on important values like the liberty to make one’s own arrangements regarding one’s health care, including a liberty not to make any such arrangements, or the free exercise of religion, we can, in judging its propriety, at least set in the scales on the other side the undoubted “police powers” of the states—the traditionally recognized, and very broad, authority reserved to the states under the Tenth Amendment to legislate to defend the public safety, morals, health, and welfare. That is, in the case of state regulations, impositions on individual liberty have to be weighed against the wide-ranging power of the state even to make people do things for their own good whether they want to or not. The federal government, however, does not possess such a comprehensive power. It is one thing to accept a limitation on individual liberties when it arises from the exercise of the indisputable reserved right of state governments to regulate individual behavior with a view to the public health, but quite another when they emanate from a very extensive, and therefore very questionable, stretching of a federal power over interstate commerce.

It is worth thinking through such arguments about power and authority, rather than mere policy and prudence, because they remind us of a truth that is too often forgotten in our contemporary political deliberations: Under the Constitution, America does not quite have a “national” government. That is, we are not a political community in which the central government is given complete responsibility for the common good. From the beginning, Americans consented to unite under a central government for certain limited purposes, such as national defense and the regulation of commerce. As a result of the Civil War amendments, the scope of the federal government’s mission was broadened to include the protection of the basic civil rights of all citizens. Admittedly, the federal government has broad powers in relation to those important objects. But the United States has never been and is not now a partnership in every good thing. And it is difficult to see how universal health insurance is a reasonably implied responsibility under any of the limited objects with which the federal government has been entrusted.