Roy G. Spece (University of Arizona – James E. Rogers College of Law) has posted 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 (Northern Kentucky Law Review, 2011) on SSRN. Here is the abstract:
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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).