The health insurance mandate
Tuesday, January 5th, 2010
The health care overhaul debate has some legal scholars wondering if a key element in the proposals is Constitutional. That is: Can Congress really force Americans to buy health insurance?
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Under the reform proposals insurance companies will be required to offer coverage to many more people including those with health problems. But lawmakers don't want Americans to wait until they are sick to sign up for coverage, so they included the insurance mandate to push people to buy coverage while they are healthy.
Some argue that the mandate is vulnerable to a Supreme Court challenge. But health law professor Andrew Fichter disagrees. He says the requirement is only a small expansion on Congress' authority to regulate commerce that crosses state lines.
Fichter: Many health issues affect interstate commerce. Diseases cross state lines, and in addition, many forms of health care are delivered in an interstate manner. At this point we have telemedicine, tele-radiology. People in one state giving advice to people in other states.
Fichter teaches at Widener Law in Wilmington. He says individuals who refuse to sign up will face financial penalties, but he says jail time is unlikely.
Timothy Jost is a health law professor at the Washington and Lee University School of Law. He expects opponents to challenge the mandate but does not consider it a serious Constitutional question.
Jost: I frankly don't think anybody on the Supreme Court, except for probably Justice Thomas is going to have a problem with this one. I think this is basically a political challenge.
Under a reformed health insurance market, coverage will be more widely available, especially for people with pre-exisiting conditions. Jost says insurers worry some people will try to game the system.
Jost: In the ambulance on the way to the hospital, they can call up an insurer and say: 'Sell me a policy right now.' That of course doesn't work. You can't have an insurance market, if healthy people can just sit it out until they get sick.
The insurance mandate is designed to prevent that problem.
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Given where insurance started out as nonprofit organizations to pool funds and reduce individual risk, the concept of mandating people to contribute to increase the size of the pool should hardly be a foreign concept. When people are able to collect without having had to contribute in the first place, those who are honest or responsibly planning protection for themselves are penalized and that is hardly fair.