Civil disobedience and the individual mandate

“Individual mandate” refers to a provision in the new health care reform act that requires all citizens to purchase health insurance. There are exceptions for those who cannot afford to pay and for those who have religious objections, such as Christian Scientists.
Without this provision, health care reform falls apart. If we’re going to require insurance companies to cover everyone, including those with preexisting conditions, then the pool of purchasers must include healthy as well as unhealthy people.

Legal attempts to repeal

Now that health care reform has passed, individual states have vowed to repeal it. The cause has become a battle cry of the Republican right. Even before the bill was passed, two thirds of the states were working on some form of legislation that would obstruct the individual mandate.
Opponents of health reform may not have a legal case that will stand up in court. The Supremacy Clause of the Constitution states: “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Opponents of reform don’t need success in the courts to achieve their objective, however. If they can persuade citizens not to comply with the individual mandate, they can accomplish their intention, which is to defy federal law.

The individual mandate is vulnerable to civil disobedience

Writing in The New England Journal of Medicine, law professor Timothy Jost argues that anti-reform legislation in the states, such as Virginia’s law to exempt its residents from the individual mandate, are designed to sanction civil disobedience:

[T]he mandate is particularly vulnerable from an enforcement perspective. It essentially imposes a tax penalty … on uninsured individuals who do not purchase health insurance. … Individuals are supposed to pay this penalty with their annual income taxes, but the Senate bill waives criminal penalties and prohibits the Internal Revenue Service (IRS) from imposing liens or levies on a taxpayer’s property for failure to pay. Compliance will, therefore, be largely voluntary (although the IRS can still make a tax resister’s life miserable, whether or not it can ultimately collect). The state bills can thus be seen as invitations to civil disobedience that counsel state citizens to “violate the federal law, wave this statute in their face, and dare them to come after you.”

As a precedent for the success of this tactic – states encouraging citizens to resist federal law – Jost cites what’s happened with the legalization of marijuana. According to the Supreme Court, the federal government has the authority to outlaw medical marijuana. In the face of state laws that authorize use, however, the Justice Department declared that prosecuting users was not “an efficient use of limited federal resources.”

Let’s hope Virginians will be embarrassed again

Jost also cites the historical example of states defying federal law to desegregate education.

[D]emagogues such as the late Senator Harry Byrd (D-VA) mounted the Campaign for Massive Resistance to school desegregation in Virginia and other states during the 1950s and 1960s. Virginia passed a series of statutes intended to maintain the strict segregation of its schools, even going so far as to close the public schools in one county for 6 years. The legislation was held unconstitutional by the federal courts, and the campaign eventually collapsed. Today, most Virginians regard the whole episode as an embarrassment. The state legislature has even adopted reparations legislation to help people who were denied an education during the campaign. Perhaps if health care reform is successfully implemented and Americans come to fully appreciate its benefits, they will look back at the current efforts with similar embarrassment.

As a side note, it’s interesting that Arkansas, where a governor in Little Rock attempted to prevent black students from attending an all-white high school, is not opposing health care.

“They tried it here in Arkansas in ’57 and it didn’t work,” Gov. Mike Beebe (D) told reporters recently. “I think you got to tell people the truth. And if I understand the law, the truth is the federal government can’t just be defied by the state governments.”

The morality of equal treatment for all

If multiple states encourage their citizens to reject the individual mandate, this does not bode well for enforcement of the legislation as it is currently written. Widespread civil disobedience, however, may contain a silver lining, at least for those who support the public option and for those who would like to see greedy insurance companies disappear.

It is possible that the federal government will eventually conclude that it is not possible to enforce the individual mandate for health insurance. But if individuals successfully resist accepting responsibility for being insured, there will be no way of expanding affordable coverage in a system that depends on private insurers. If government funding of health care must therefore be increased, it may not be the result resisters want.

So, thanks to opposition from the Right, we may get government-run health insurance after all.
Jost concludes with this sentiment:

These resistance efforts are not about law — they are about politics. But of course at this point, health care reform is only about politics, except insofar as it is still about the morality of equal treatment for all.

Related posts:
The health care battle isn’t over
The Supreme Court and health care repeal politics
Reaction to health care: A step backwards
Déjà vu: Historical resistance to the inequities of health
Health inequities: An inhumane history
Health inequities, politics, and the public option
The public option has a pulse
Without the public option, it’s not health care reform