January 18, 2012
HLS Professor Charles Fried was counsel of record in an amicus brief (PDF) filed on Jan. 13 with the Supreme Court on behalf of 104 health law professors supporting the constitutionality of the insurance mandate in the Patient Protection and Affordable Care Act, which will be challenged before the Supreme Court in Department of Health and Human Services v. State of Florida in March. The mandate requires certain uninsured persons to obtain health insurance or pay a penalty.
The principal constitutional objection to the mandate in the Affordable Care Act is that it regulates commerce by compelling individuals to enter a market—the market for health insurance—in which some do not participate. Research and data set out in the brief show that the overwhelming proportion of persons in the U.S. already participate in the market for health care on a frequent and regularly recurring basis. The market for health care is the market the act regulates and health insurance is just one payment modality in that market.
“The real question,” the brief’s authors write, “is not whether people will receive care: it is who will pay for the cost of that care, and how.” The law’s mandate, they argue, addresses that problem by “ensuring in advance that individuals have made provisions to pay for the care that, in aggregate, they will predictably need.”
The brief’s co-counsels are Abbe Gluck of Columbia Law School and Gregory G. Rapawy ’01 of Kellogg, Huber, Hansen, Todd, Evans & Figel. Among the amici is HLS Professor Einer Elhauge ’86.
In March 2011, HLS hosted a debate on the constitutionality of health care reform: "Is the Obama Health Care Reform Constitutional? Fried, Tribe and Barnett debate the Affordable Care Act" (watch video)
In February, Professor Fried testified before the Senate Judiciary Committee: "Fried, Dellinger testify on the constitutionality of the healthcare law" (watch video)