Constitutional Attacks Against the Patient Protection and Affordable Care Act's 'Mandating' Certain Individuals and Employers to Purchase Insurance and, Simultaneously, Restricting Purchase by Undocumented Immigrants and Women Seeking Abortion

135 Pages Posted: 18 Dec 2010 Last revised: 16 Jan 2011

See all articles by Roy G. Spece

Roy G. Spece

University of Arizona - James E. Rogers College of Law

Date Written: January 13, 2011

Abstract

This article briefly discusses certain historical events, situations, and processes within our health care system that preceded the Patient Protection And Affordable Care Act. It will describe some prominent goals, features, and possible outcomes of PPACA, with an eye toward elucidating four contexts: substantive due process and equal protection attacks against PPACA provisions (1) prohibiting undocumented immigrants from purchasing healthcare insurance in Act’s exchanges; (2) allowing states to bar abortion coverage from the exchanges and mandating that any abortion coverage therein be accompanied by separate funds, accounting, and paperwork for abortion and non-abortion segments of premiums paid; (3) excluding undocumented immigrants from programs states are allowed to create, using contractors, for provision of health care or healthcare insurance to relatively poor persons who nevertheless are not needy enough to qualify for Medicaid; and (4) mandating, most importantly, that individuals purchase healthcare insurance. The article will explain (a) the elements necessary to state a due process or equal protection claim against a provision of a government-created health care plan, (b) the general decision-making approaches and standards of review courts, including the U.S. Supreme Court, would probably use to decide such claims, and (c) apply this body of law to each of the four contexts. It concludes that contexts (1) to (3) present constitutional infirmities, while context (4) does not. The claims in context 4, even to the extent that they implicate fundamental rights to medical decision-making and informational privacy, should fail under United States Supreme Court precedents, including Whalen v. Roe, 429 U.S. 589 (1977).

Keywords: Health Care Reform, Obama Care, PPACA, Abortion, Undocumented Immigrants, Substantive Due Process, Equal Protection, Medical Decisionmaking Privacy, Medical Informational Privacy, Healthcare Insurance, Mandates to Purchase Insurance, Health Care Policy, Insurance Exchanges, Public Option

Suggested Citation

Spece, Roy G., Constitutional Attacks Against the Patient Protection and Affordable Care Act's 'Mandating' Certain Individuals and Employers to Purchase Insurance and, Simultaneously, Restricting Purchase by Undocumented Immigrants and Women Seeking Abortion (January 13, 2011). Northern Kentucky Law Review, 2011; Arizona Legal Studies Discussion Paper No. 10-48. Available at SSRN: https://ssrn.com/abstract=1727464

Roy G. Spece (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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