Obligatory Health

18 Pages Posted: 14 Apr 2011 Last revised: 20 Jul 2012

Noa Ben-Asher

Pace University - School of Law

Date Written: July 20, 2012

Abstract

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act’s “Individual Mandate” to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, this Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between liberty and equality. At a time when some scholars are emphasizing the convergence of liberty and equality, the healthcare debates accentuate the friction between these two foundational principles of American jurisprudence. Second, this Article offers a supplement to the rights-based orientation of both liberty and equality claims: the perspective of individual obligation. This Article argues that a society committed to values such as equality may sometimes need to achieve its goals through the recognition of individual obligation. The Act embodies this insight. It is a legislation that simultaneously reflects social commitment to equality and the individual obligation of members of society to help others realize their basic human needs.

Keywords: Health Care, Individual Mandate, Commerce Clause, Robert Cover, Rights, Obligations, Patient Protection and Affordable Care Act

Suggested Citation

Ben-Asher, Noa, Obligatory Health (July 20, 2012). 15 Yale Human Right & Development L.J. 1 (2012). Available at SSRN: https://ssrn.com/abstract=1808162

Noa Ben-Asher (Contact Author)

Pace University - School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States

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