Court Agrees that Federal Government Can't Make Citizens Buy Insurance

August 6, 2010
Alberto Borges, MD

Virginia sues the federal government, argues that the Commerce Clause doesn't allow Obama and Congress to force citizens to purchase health insurance.

In my MDNG column, "Is the HITECH Act Constitutional?", I wrote about how President Obama and Congress were going against the United States Constitution, in particular the Commerce Clause, when they added to the HITECH Act penalties to physicians that don't buy into the concept of the certified EHR, essentially forcing physicians into participating in the commerce activity of health information technology (HIT). MDNG actually produced a lawyer to counter my arguments in a “fair and balanced” manner. I argued that the Commerce Clause can regulate, tax, deny, penalize, and control interstate trade in almost any manner, but it cannot be interpreted to force a physician into engaging in trade, in particular, to purchase a certified EHR system.

Well, on August 3 my home state of Virginia backed my argument when it won the first phase of its lawsuit against the federal government arguing that the healthcare law was illegally forcing citizens into purchasing health insurance by applying financial penalties to those who chose not to comply. The state of Virginia argued that the Commerce Clause would NOT apply to this type of regulation.

To be fair, the ruling is merely a procedural decision by the court to allow this case to move forward, but this decision is a very big win. There are a dozen lawsuits pending in other states arguing similar issues. Many of us that wish to overturn the healthcare reform law will look at this ruling as the first crack that will eventually lead to the law’s demise. I think that it will eventually also be applied to the HITECH Act; the HHS cannot force doctors into buying anything that can threaten the very survival of their businesses by applying penalties to anyone that refuses to comply with the concept of a certified EHR. This, too, will eventually be overturned, either in the courts or in Congress.