Yesterday's decision by a Virginia federal judge invalidating the portion of President Obama's health care reform law that requires individuals to purchase insurance does little to settle the question of the act's legality. That judge, Henry E. Hudson, wrote forcefully that such a provision exceeded Congress' authority under the Constitution's commerce clause. Two other federal judges, George Steeh in Michigan and Norman Moon in Virginia, have come down just as forcefully on the other side. Ultimately, the issue will surely reach the Supreme Court, and what it will do is impossible to know.
But one thing is clear: Voiding the individual mandate is a bad idea. It is the key provision that holds the most popular elements of the health care reform act together; Virginia Attorney General Ken Cuccinelli, who brought the suit, predicts that without the individual mandate, the health care reform law's provisions prohibiting insurance companies from denying coverage to those with pre-existing conditions will be voided. Presumably, that would also allow insurance companies to resume the practice of "rescission," that is, dropping coverage retroactively by claiming that a patient failed to disclose a pre-existing condition, even if it has no bearing on the current illness.
Mr. Cuccinelli also predicts an end to rules that force insurers to charge customers similar prices or to let children stay on their parents' policies until they are 26. Those are all elements of the plan that, broadly speaking, would hold down the cost of insurance while making it a better product.
But other elements of health care reform — such as a significant expansion of eligibility for Medicaid, the federal health care program for the poor, and the subsidies for insurance in soon-to-be-established state-run health insurance exchanges — would remain intact if Judge Hudson's opinion is upheld. Those are portions of the law that will cost taxpayers billions.
The reason President Obama made the individual mandate a key part of the legislation is not because he has a paternalistic belief that everyone should have insurance and the government should make them buy it. In fact, during the Democratic primaries in 2008, he argued the opposite position while Hillary Clinton insisted the mandate was necessary. She was right, and here's why: If insurance companies can't turn down people with pre-existing conditions, there would be no reason for anyone to buy health insurance until they were sick. Healthy people would opt out, and the insurance pool would be filled only by those with expensive medical bills, thus driving up costs. By contrast, the individual mandate spreads the costs of medical care over the broadest number of people, which is the idea behind insurance in the first place.
But do we really need to prohibit the denial of care for pre-existing conditions? What was so wrong with the status quo? Shouldn't the decision of whether to protect one's self from the financial devastation that can accompany illness be one for each person to make? Isn't this, as Mr. Cuccinelli has argued, a matter of individual liberty?
The problem with this line of reasoning is that health care is not something people choose to buy or not buy on the same rational basis that they choose whether to get a new sweater. When people are sick, they seek treatment. And as a society, we have decided that we will not turn them away if they can't pay. We don't withhold health care from the poor and uninsured, we just provide it to them in the most expensive and least effective way possible — through emergency rooms and hospital care — and then spread the costs among everyone else.
People may not like the idea that the government is telling them what to do, but the alternative is not appealing, either. Those cheering Judge Hudson's ruling and hoping for it to be upheld should consider this: If the Constitution will not permit an individual mandate as part of a cure for the ills of our health care system, what's a better idea?