Crucial part of US health reform act is unconstitutional, says appeal court

BMJ 2011; 343 doi: (Published 15 August 2011) Cite this as: BMJ 2011;343:d5257
  1. Janice Hopkins Tanne
  1. 1New York

The US health reform act’s requirement that most citizens buy health insurance is unconstitutional, the 11th US Circuit Court of Appeals in Atlanta, Georgia, has ruled. It said that the rest of the act could stand.

The Atlanta court, which is considered conservative, heard appeals from 26 Republican state governors and attorneys general who oppose health reform.

The requirement for most US citizens to buy health insurance, with subsidies to help those on low incomes, is critical to the success of the legislation, which was passed in March 2010 (BMJ 2010;340:c1635, doi:10.1136/bmj.c1635).

In late June the Sixth US Circuit Court of Appeals in Cincinnati, Ohio, ruled that the entire act was constitutional (BMJ 2011;343:d4236, doi:10.1136/bmj.d4236). Ruling on a third appeal is expected soon from the Fourth US Circuit Court of Appeals in Richmond, Virginia.

The conflicting decisions mean that the case will almost certainly be decided by the Supreme Court. That could happen as early as this autumn or perhaps next summer, in what will then be the throes of the 2012 presidential election campaign.

An adviser to President Barack Obama and a statement by the Department of Justice said that the health reform act, formally known as the Affordable Care Act, was constitutional and would ultimately be upheld.

The requirement to buy health insurance, known as the “individual mandate,” takes effect in 2014. Other provisions of the act require health insurance companies to offer policies to people who have pre-existing conditions or are ill and prevent companies placing a limit on lifetime healthcare costs.

The requirement that most people buy health insurance creates an insurance pool in which younger, healthier people will offset the higher costs of older, sicker people. However, if people didn’t have to buy health insurance many would delay buying coverage until they were ill, resulting in rising premiums that would further discourage healthy people from buying health insurance.

The individual mandate relies on the “commerce clause” of the US constitution, which gives the federal government the power “to regulate Commerce . . . among the several states.” The government’s position is that people who don’t buy health insurance nevertheless engage in commerce. They receive healthcare they cannot pay for when they become ill or have an accident. The burden then falls on hospitals, which are required to treat patients, and on tax payers.

The Los Angeles Times estimated that about 50 million US citizens lack basic health insurance and that as a result hospitals and taxpayers pay about $43bn (£26bn; €30bn) to cover the treatment of those who can’t pay (, 12 Aug, “Federal appeals court strikes down insurance mandate”).

Those who oppose the act say that the commerce clause cannot be used to force people to buy health insurance or any other product.


Cite this as: BMJ 2011;343:d5257