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With the recent announcement that Justice John Paul Stevens is retiring from the Supreme Court and the lawsuits filed by state attorneys general challenging the new health care bill, the constitutionality of the legislation is sure to receive renewed scrutiny. Several aspects of the legislation are troubling from a constitutional perspective. However, not all of these aspects are raised in the state lawsuits. Ultimately, the Supreme Court may confront the constitutionality of the legislation in the context of a lawsuit brought by an individual citizen, not the state governments.

For example, the mandate requiring individuals to purchase health insurance raises potential problems, not merely because the congressional authority to pass it is questionable, but also because it interferes with individual rights regarding health care choices. While many commentators question whether Congress has the constitutional authority to enact such a provision under the Commerce Clause, the potential violation of individual rights may be even more significant. There is a long line of Supreme Court authority holding that individuals have a fundamental right to make personal health care choices without government interference, including the choice to refuse care altogether. For example, in Cruzan v. Director, Missouri Department of Health, a case involving the right to cease life-sustaining medical treatment, the Supreme Court held that individuals have a "constitutionally protected liberty interest in refusing unwanted medical treatment." Likewise, in Washington v. Harper, the court held that prison inmates have a "significant liberty interest" in refusing anti-psychotic medication. Finally, in Parham v. J.R., the court held that children have a significant liberty interest in refusing medical treatment that they do not want, even though their parents request it. Thus, the right to make individual choices regarding medical care is firmly rooted in the Constitution.

The courts have held that driving on the public roads is a privilege--not a right. Making determinations regarding one's health care choices implicates fundamental rights.

Requiring individuals to purchase health care insurance interferes with this fundamental right. While proponents of the legislation often point to state requirements for automobile insurance as a model for the individual mandate, they are inapposite. The courts have held that driving on the public roads is a privilege--not a right. Making determinations regarding one's health care choices implicates fundamental rights. Just as the government cannot require us to purchase subscriptions to certain magazines or newspapers with which we disagree without violating our First Amendment rights, so, too, requiring us to purchase health insurance may violate our constitutional right to make our own health care decisions.

While proponents point to the congressional power to levy taxes as a potential source of authority for the individual mandate, Congress cannot exercise such authority in a manner that violates individual rights. Moreover, the individual mandate is far different from a congressionally imposed tax. It is an unprecedented provision requiring individuals to pay private companies for certain government-mandated services. Unlike tax revenues, the funds do not go to the government, but rather to private parties. It is questionable whether Congress has the constitutional authority to enact such a provision. If it did have such authority, the implications would be quite troubling. For example, now that it has taken over certain automobile companies, could the federal government require us to purchase only GM cars, as opposed to Ford or Toyota vehicles? Such legislation is contrary to traditional notions of the legislative power and would open the door to significant government abuses.

These and other emerging questions regarding the constitutionality of the health care bill are likely to receive renewed scrutiny in any hearings on a replacement for Justice Stevens as well as in the wave of litigation that is likely to follow the state lawsuits. The hearings and the state lawsuits are only the beginning of the debate over the constitutionality of this sweeping legislation, in which the federal government seeks to exercise unprecedented powers.

Douglas G. Smith is an adjunct scholar at AEI.

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