CAN GOVERNMENTS MANDATE INSURANCE PURCHSES?

Today, a federal judge in Florida has struck down the entire “The Patient Protection and Affordable Care Act” because he felt that the individual mandate to purchase health insurance is unconstitutional and not “severable” from the remainder of the act. While other federal judges have held it to be constitutional, there is now a split among courts that, ultimately, will have to be decided by the U.S. Supreme Court.

I will not attempt to guess whether the Supreme Court will hold the statute to be constitutional, but if not, it raises some interesting questions. Most states have mandates for the individual purchase of auto insurance, and some mandate malpractice insurance for various health care providers. While there are difference in such statues because driving and practicing a profession are “privileges” granted by the states and conditions can, therefore, be attached, there will still remain a question as to whether states can mandate the purchase of such insurance from private companies, or whether they must provide it through the states so that it is offered at no “profit” to anyone.

If “The Patient Protection and Affordable Care Act” is ultimately held to be unconstitutional on that basis, then we can expect litigation to go forward to invalidate all such provisions for insurance everywhere. Now we wait and see.