There is no right to be uninsured

As I have written elsewhere, the lawsuits against the Affordable Care Act are legally frivolous. My former professor Rick Hills, whose scholarship is deeply suspicious of expansive federal power, has called the argument "deeply silly." Most legal scholars think that a Supreme Court decision striking it down would be a blow to the Court's reputation beyond that of either Bush v. Gore or Citizens United.

The problem for the anti-ACA argument is that it's an argument about individual rights dressed up as an argument about the federal government's powers. What opponents of the ACA don't like is that they are being forced by the government to do something or buy something, and they feel that this violates their rights. However, it is impossible, under existing legal precedent, for them to make this argument. Thus, they are forced to argue that the law is beyond Congress's power.

But why can't they argue that the government is violating people's rights by forcing them to buy insurance? Why hasn't that argument been raised? The answer is that if imposing affirmative duties on people violated an individual liberty, the states would also be barred from doing that, and states have been been imposing duties on people for a long, long time. In 1905, the Supreme Court upheld mandatory vaccination laws in Jacobson v. Massachusetts. In the name of public health, a state was free to force its citizens to receive vaccinations. Since then, we've never really looked back. Nobody seriously questioned whether RomneyCare in Massachusetts was legal.

But shouldn't we reevaluate Jacobson? After all, it was before Griswold (right to contraception), Roe (right to abortion), or Lawrence (right to consensual adult sexual conduct). As a society, we have grown more sensitive about the ability of people to regulate their own bodies, free from government interference. Why should the government be allowed to tell us which vaccines we must get?

The question is particularly interesting from a historical perspective. Traditionally, the "police power"—the powers that the states had that were absolutely forbidden to the federal government—included the power to protect the "safety, health, morals and general welfare of the public." Mandatory vaccines? Protection of public health. Prohibition of contraception? Protection of public morality. The role of the state, traditionally, included protecting the "morality" of its people, and this was viewed as a real and important responsibility.

At some point, however, protection of "public morality" runs headlong into regulation of "private morality," and this is a line the Supreme Court has decided that states cannot cross. But both legally and philosophically this is a very difficult line to draw. When is regulation of private conduct warranted in the name of the public welfare? Certainly, "private" decisions have societal effects. The ability to control when one gets (or stays) pregnant has had drastic and important—and, supporters of Rick Santorum would say, negative—changes on modern society. So why can't the state regulate contraception or ban abortion in the name of public welfare? Is there a principled line to draw as to why the state should be able to mandate vaccination (or insurance coverage) but shouldn't be able to mandate the carrying of pregnancies to term?

It's not totally clear to me what the line is. One answer is an objective/subjective distinction. Mandating vaccination or insurance coverage has direct and tangible effects, such that one can plausibly call it the imposition of a public health measure. Mandating the carrying of pregnancies to term has indirect and subjective effects, such that the "benefit" is neither really capable of being measured nor meaningful except with respect to a certain system of values.

In the end, is it really just a matter of circumstances and of balancing? Every private decision regarding health care has some small societal effect, which, in the aggregate, can create significant societal effects. Is determining which laws improperly regulate "private" conduct and which properly regulate "public" conduct just a matter of the directness and the magnitude of the causal path? What about recreational drug use? Private matter of bodily autonomy? Or public health crisis?

Indeed, the "culture war" between right and left is in large part a disagreement over where we draw this line. Nonetheless, whatever happens this spring regarding the ACA, the Supreme Court cannot (and will not) create a "right to be uninsured."