It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
As is the argument that the regulation of health insurance will lead to mandates for purchasing other private goods:
This second aspect of the health care market distinguishes the ACA from Plaintiffs’ hypothetical scenario in which Congress enacts a law requiring individuals to purchase automobiles in an attempt to regulate the transportation market. Even assuming that all individuals require transportation in the same sense that all individuals require medical services, automobile manufacturers are not required by law to give cars to people who show up at their door in need of transportation but without the money to pay for it. Similarly, food and lodging are basic necessities, but the Court is not aware of any law requiring restaurants or hotels to provide either free of charge.
It should be emphasized that this distinction is not merely a useful limiting principle on Congress’s Commerce Clause power. Rather, it is a basic, relevant fact about the operation of the health care market which is critical to understanding the ACA’s efforts to reform the health care system. The requirement placed upon medical providers by federal law to care for the sick and injured without recompense is part of the cost-shifting problem that Congress sought to redress by enacting the ACA. When a supplier is obligated by law to produce goods or services for free, there is bound to be a substantial effect on market prices if consumers’ behavior results in that obligation’s frequent invocation.
Kessler also found that the individual mandate is a “critical element in Congress’s comprehensive plan” and dismissed the plaintiff’s claim that the provision undermined religious freedoms since anyone who objects to having health care, can pay the penalty for remaining uninsured. She did reject the government’s contention that Congress could enact the law under the General Welfare Clause, saying that Congress “did not intend [the law] to operate as a tax.”
Two other judges have ruled the provision unconstitutional, the most recent of which, Judge Roger Vinson in Florida, voided the entire law.
Read Kessler’s full decision HERE.