US District Court Judge Henry Hudson found that Congress cannot order individuals to buy health insurance. In his opinion, he writes:
(T)he Secretary urges an expansive interpretation of the concept of activity. She posits that every individual in the United States will require health care at some point in their lifetime, if not today, perhaps next week or even next year. Her theory further postulates that because near-universal participation is critical to the underwriting process, the collective effect of refusal to purchase health insurance affects the national market. Therefore, she argues, requiring advance purchase of insurance based upon a future contingency is an activity that will inevitably affect interstate commerce. Of course, the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.
Judge Hudson seems be using a version of the "can the government force you to buy a car" argument, but he's overlooking a critical difference between health care and transportation, housing and nutrition: I can't walk into a car dealership and demand a car (unless I also offer to pay for it). I can't walk into a real estate agency and demand a home. I can't walk into a grocery store and demand food. But, I can walk into an emergency room and demand treatment, regardless of my ability to pay.
Under the Emergency Medical Treatment and Active Labor Act passed in 1986, hospitals have certain obligations:
- Individuals requesting emergency care... must receive a medical screening examination to determine whether an emergency medical condition (EMC) exists. Examination and treatment cannot be delayed to inquire about methods of payment or insurance coverage, or a patient's citizenship or legal status. The hospital may only start the process of payment inquiry and billing once the patient has been stabilized to a degree that the process will not interfere with or otherwise compromise patient care.
- The emergency room... must treat an individual with an EMC until the condition is resolved or stabilized and the patient is able to provide self-care following discharge, or if unable, can receive needed continual care. Inpatient care provided must be at an equal level for all patients, regardless of ability to pay. Hospitals may not discharge a patient prior to stabilization if the patient's insurance is canceled or otherwise discontinues payment during course of stay.
Under EMTALA, the collective effect of refusal to purchase health insurance will affect the national market. Let's look at the possibilities:
- The ER patient has insurance. The insurance company reimburses the hospital for the care they provide.
- The patient lacks insurance. The patient pays out of pocket. The hospital is reimbursed.
- The patient lacks insurance, but cannot pay. The hospital is not reimbursed.
That last possibility is an example of what's called the free rider problem: someone consuming more of a resource than they pay for.In this case, the part of the Affordable Care Act that Judge Hudson severed, the individual mandate, was the remedy Congress used to address the free rider problem. Judge Hudson did not address EMTALA in his opinion, and that oversight is a serious deficiency in his argument.