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Mark A. Hall

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A Public Health Catastrophe Could Ensue If the Supreme Court Declares the Affordable Care Act Unconstitutional

Posted: 01/13/12 09:35 AM ET

In March, the Supreme Court will hear the constitutional challenge to the Affordable Care Act, and so this is the month of brief-writing. The scores of briefs filed will contain plenty of bluster and hyperbole -- some of it relating to how far federal powers might extend if the Court upholds the reform law's "individual mandate." While opponents obsess over what vegetables the government might require them to purchase, they overlook the potential public health catastrophe that could well ensue if the Court were to declare the law unconstitutional.

That catastrophe would not flow simply from the uninsured continuing to suffer from lack of access to critical medical care. Although 10,000 or more people may die each year from lack of health insurance, a far greater threat would loom from tying the federal government's hands in responding to potential (and perhaps even probable) public health disasters (i.e., the 1918 flu pandemic that killed over half a million Americans -- and public health experts fear a modern avian flu could do far greater damage. Or, imagine a nuclear meltdown similar to that in Japan, or more Katrinas brought on by global warming.)

Traditionally, state and local officials have been the first line of defense against natural and public health disasters. But Katrina, swine flu, and several other recent events are clear warning signs that local officials are not equipped to deal effectively with truly catastrophic circumstances. For that, we'll frantically look to the federal government for direction and resources. But, frighteningly, a health insurance ruling forbidding federal authorities from mandating behavior would cut the heart out of the most effective disaster response measures.

Effective response to natural disasters usually entails mandatory evacuations. Containment of infectious disease requires mandatory screening, testing and treatment. Without these firm legal powers, the federal government would be limited to only cajoling, incentivizing or simply forcing people to stay where they are.

You might think that public health measures have an entirely different constitutional foundation than health insurance mandates. But, both rely exclusively on the Constitution's "Commerce Clause." Epidemics and mass disasters obviously impact interstate commerce, which is the basis for the federal government's current quarantine powers. To rule, as opponents of insurance mandates urge, that Congress may not use commerce powers to mandate behavior would necessarily set a firm and absolute bar to mandating behavior in any sphere covered by the Commerce Clause, and no matter how dire the circumstances. A Supreme Court precedent setting, such as an absolute bar, conceivably could one day cost the lives of millions of Americans.

Professor Hall participated in filing a Supreme Court amicus ("friend of the court") brief today, on behalf of 104 health law professors who support the reform law's constitutionality.