Health Care: Constitutional Rights and
Legislative Powers
Kathleen S. Swendiman
Legislative Attorney
March 23, 2012
Congressional Research Service
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www.crs.gov
R40846
CRS Report for Congress
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Health Care: Constitutional Rights and Legislative Powers

Summary
The health care reform debate raises many complex issues including those of coverage,
accessibility, cost, accountability, and quality of health care. Underlying these policy
considerations are issues regarding the status of health care as a constitutional or legal right. This
report analyzes constitutional and legal issues pertaining to a right to health care, as well as the
power of Congress to enact and fund health care programs. Following the passage of the Patient
Protection and Affordable Care Act, P.L. 111-148, legal issues have been raised regarding the
power of Congress to mandate that individuals purchase health insurance, and the ability of states
to “nullify” or “opt out” of such a requirement. These issues are also discussed.
The U.S. Constitution does not set forth an explicit right to health care, and the Supreme Court
has never interpreted the Constitution as guaranteeing a right to health care services from the
government for those who cannot afford it. The Supreme Court has, however, held that the
government has an obligation to provide medical care in certain limited circumstances, such as
for prisoners.
Congress has enacted numerous statutes, such as Medicare, Medicaid, and the Children’s Health
Insurance Program, that establish and define specific statutory rights of individuals to receive
health care services from the government. As a major component of many health care entitlement
statutes, Congress has provided funding to pay for the health services provided under law. Most
of these statutes have been enacted pursuant to Congress’s authority to “make all Laws which
shall be necessary and proper” to carry out its mandate “to … provide for the … general
Welfare.” The power to spend for the general welfare is one of the broadest grants of authority to
Congress in the U.S. Constitution. The Supreme Court accords considerable deference to a
legislative decision by Congress that a particular health care spending program provides for the
general welfare.
In 2010, Congress enacted comprehensive health care reform legislation, P.L. 111-148, which
includes a requirement, effective in 2014, that individuals purchase health insurance, and which
significantly expands the Medicaid program. A number of lawsuits have been filed challenging
various provisions of this legislation, including the power of Congress to enact an individual
mandate to purchase health insurance under the Commerce Clause or other provisions of the U.S.
Constitution. Significantly, there is now a split in the circuit courts, with one circuit court
invalidating the individual health insurance mandate, two circuit courts upholding the same
provision, and another circuit court dismissing two lawsuits on procedural grounds. On
November 14, 2011, the United States Supreme Court agreed to review the 11th Circuit Court
decision in Florida v. HHS.
In addition, several states have passed laws, amended their state constitutions, or entered into
interstate compacts to attempt to “nullify” or “opt out” of the federal individual health insurance
mandate. Direct conflicts between federal laws and state nullification statutes or state
constitutional amendments would raise constitutional issues which are likely to be resolved in
favor of federal law under the Supremacy Clause of the U.S. Constitution.
A number of state constitutions contain provisions relating to health and the provision of health
care services. State constitutions may provide constitutional rights that are more expansive than
those found under the federal Constitution since federal rights set the minimum standards for
the states.
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Health Care: Constitutional Rights and Legislative Powers

Contents
Health Care Rights Under the U.S. Constitution ............................................................................. 1
Explicit Rights in the U.S. Constitution .................................................................................... 1
The Right to Health Care at the Government’s Expense........................................................... 2
Substantive Due Process: Impact on Fundamental Rights.................................................. 2
Equal Protection: Wealth as a “Suspect Class” ................................................................... 5
Exception: Under Government Control .............................................................................. 6
Federal Power to Provide for and Fund Health Care Programs....................................................... 6
The Taxing and Spending Power............................................................................................... 7
Federally Funded Health Care Programs ............................................................................ 8
Requirements Under the Patient Protection and Affordable Care Act, Including the
Individual Mandate to Purchase Health Insurance................................................................. 9
Lawsuits Challenging the Constitutionality of the Individual Health Insurance
Mandate and Expansion of the Medicaid Program Under ACA.................................... 10
State Attempts to “Nullify” or “Opt Out” of Federal Health Care
Reform Requirements .................................................................................................... 16
State Constitutions and the Provision of Health Care Services ..................................................... 18

Contacts
Author Contact Information........................................................................................................... 19

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Health Care Rights Under the U.S. Constitution
The health care reform debate raises many complex issues including those of coverage,
accessibility, cost, accountability, and quality of health care. Underlying these policy
considerations are issues regarding the status of health or health care as a moral, legal, or
constitutional right. It may be useful to distinguish between a right to health and a right to health
care.1 An often cited definition of “health” from the World Health Organization describes health
as “a state of complete physical, mental and social wellbeing and not merely the absence of
disease or infirmity.”2 “Health care” connotes the means for the achievement of health, as in the
“care, services or supplies related to the health of an individual.”3 For purposes of this report,
discussion will be limited to constitutional and legal issues pertaining to a right to health care.
Numerous questions arise concerning the parameters of a “right to health care.” If each individual
has a right to health care, how much care does a person have a right to and from whom? Would
equality of access be a component of such a right? Do federal or state governments have a duty to
provide health care services to the large numbers of medically uninsured persons? What kind of
health care system would fulfill a duty to provide health care? How should this duty be enforced?
The debate on these and other questions may be informed by a summary of the scope of the right
to health care, particularly the right to access health care paid for by the government, under the
U.S. Constitution, and under interpretations of the U.S. Supreme Court.4
Explicit Rights in the U.S. Constitution
The United States Constitution does not explicitly address a right to health care. The words
“health” or “medical care” do not appear anywhere in the text of the Constitution. The provisions
in the Constitution indicate that the framers were somewhat more concerned with guaranteeing
freedom from government, rather than with providing for specific rights to governmental services
such as for health care. The right to a jury trial, the writ of habeas corpus, protection for contracts,
and protection against ex post facto laws were among the few individual rights explicitly set forth
in the original Constitution.5 In 1791, the Bill of Rights was added to the Constitution, and
additional amendments were added following the Civil War, and thereafter. Most constitutional
amendments dealt with civil and political rights, not social and economic rights.6 However, there

1 See Lawrence O. Gostin, Securing Health or Just Health Care? The Effect of the Health Care System on the Health of
America, 39 ST. LOUIS U. L.J. 7 (1994), and Lawrence O. Gostin, The Right to Health: A Right to the Highest
Attainable Standard of Health, 31 HASTINGS CENTER REPORT 29-10 (2001).
2 Constitution of the World Health Organization (2006), available at http://www.who.int/governance/eb/
who_constitution_en.pdf.
3 Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 C.F.R. §160.103.
4 This report does not analyze the scope of a right to health or health care under various international agreements or
under the governing documents of other countries. For further information, see, e.g., JOHN TOBIN, THE RIGHT TO
HEALTH IN INTERNATIONAL LAW (Oxford University Press 2012); Puneet K. Sandhu, A Legal Right to Health Care:
What Can the United States Learn From Foreign Models of Health Rights Jurisprudence? 95 CAL. L. REV. 1151
(2007); and, Marcela X. Berdion, The Right to Health Care in the United States: Local Answers to Global
Responsibilities, 60 SMU LAW REVIEW 1633 (2007).
5 W. Kent Davis, Answering Justice Ginsburg’s Charge that the Constitution is ‘Skimpy’ in Comparison to our
International Neighbors: A Comparison of Fundamental Rights in American and Foreign Law, 39 S. TEX. L. REV. 951,
958 (1998).
6 Id. at 958-959.
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have been proposals to add a specific right to health care as an amendment to the U.S.
Constitution. For example, in 1944, President Franklin D. Roosevelt, in his State of the Union
address, advanced his idea of a “Second Bill of Rights” which would include “[t]he right to
adequate medical care and the opportunity to achieve and enjoy good health.”7 More recently,
Representative Jesse L. Jackson Jr. introduced H.J.Res. 30 on February 14, 2011, a bill which
proposes an amendment to the U.S. Constitution ensuring a right to health care. The proposed
amendment reads, “Section 1. All persons shall enjoy the right to health care of equal high
quality. Section 2. The Congress shall have power to enforce and implement this article by
appropriate legislation.”
The Right to Health Care at the Government’s Expense
Even though the U.S. Constitution does not explicitly set forth a right to health care, the Supreme
Court’s decisions in the areas of the right to privacy and bodily integrity suggest the Constitution
implicitly provides an individual the right to access health care services at one’s own expense
from willing medical providers.8 However, issues regarding access to health care do not usually
concern access where a person has the means and ability to pay for health care, but rather involve
situations where a person cannot afford to pay for health care. The question becomes, not whether
one has a right to health care that one can pay for, but whether the government or some other
entity has the obligation to provide such care to those who cannot afford it.
If the Supreme Court were to find an implicit right to health care for persons unable to pay for
such care, it might do so either by finding that the Constitution implicitly guarantees such a right,
or that a law which treats persons differently based on financial need creates a “suspect
classification.” In either case, the Court would evaluate the constitutionality of legislative
enactments that unduly burden such rights or classifications under its “strict scrutiny” standard of
review, thus according the highest level of constitutional protection offered by the equal
protection guarantees of the Constitution. Absent a finding of an implicit fundamental right to
health care for poor persons under the Constitution, or that wealth distinctions create a “suspect
class,” the Court would likely evaluate governmental actions involving health care using the less
rigorous “rational basis” standard of review. Most health care legislation would likely be upheld,
as it has been, so long as the government can show that the legislation bears a rational
relationship to a legitimate governmental interest.
Substantive Due Process: Impact on Fundamental Rights
Despite the lack of discussion of health care rights in the Constitution, arguments have been made
that the denial by the federal government of a minimal level of health care to poor persons
transgresses the equal protection guarantees under the Constitution. While the equal protection
clause of the Fourteenth Amendment applies only to the states, similar equal protection principles
are applicable to the federal government through the Due Process Clause of the Fifth

7 12 Pub. Papers 41 (January 11, 1944).
8 See Roe v. Wade, 410 U.S. 113 (1973) (constitutionally protected right to choose whether or not to terminate a
pregnancy), and Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990) (constitutional right to refuse medical
treatment that sustains life), both of which involve a right to bodily integrity that may logically be extended to a person
seeking health care services at his or her own expense.
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Amendment.9 A litigant challenging a federal action has the burden of proving that the
governmental action places an undue burden on the exercise of an individual’s fundamental right.
The standard of review used in cases involving fundamental rights is called “strict scrutiny.”
Using this heightened standard of review, if the Court determines that a fundamental right has
been unduly burdened, the governmental action will only be upheld if the government can
demonstrate that the action is necessary to achieve a compelling governmental interest.10
The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment provides
constitutional protection for certain rights or “liberty interests” related to privacy.11 Legislative
enactments that implicate the right to privacy have been reviewed under the heightened strict
scrutiny standard of review. Thus, the right to privacy has been held to include the right to
procreate,12 use contraception,13 have an abortion,14 and maintain bodily integrity.15
While the Supreme Court has held that the Constitution implicitly confers a fundamental right to
privacy, the Court has not elevated health care to the status of a fundamental right. The Court has
evaluated governmental actions involving health care using the less rigorous “rational basis”
standard of review. Under this standard, a governmental action will be upheld if the action bears a
rational relationship to a legitimate governmental interest.16 For example, in Maher v. Roe,17 the
Supreme Court held that a state could refuse to provide public assistance for non-therapeutic
abortions under a program that subsidized all medical expenses otherwise associated with
pregnancy and childbirth. In other words, while the constitutional right to an abortion protected a
woman’s right to choose whether or not to terminate a pregnancy, it did not mean abortion was a
health right.18
In Harris v. McRae,19 the Supreme Court held that the Medicaid program’s refusal, under the
Hyde Amendment, to pay for medically necessary abortions did not burden a woman’s
fundamental right to choose an abortion. The Court applied the rational basis standard of review
and found that poor pregnant women were not denied equal protection of the laws because the
abortion provisions were rationally related to a governmental “interest in protecting the potential
life of the fetus.”20 The Court also noted that while the Due Process Clause of the Fourteenth
Amendment affords protection against unwarranted government interference with freedom of

9 See, generally, the discussion regarding fundamental rights in CRS, UNITED STATES CONSTITUTION: ANALYSIS AND
INTERPRETATION, by Kenneth R. Thomas, p. 1763 et seq.
10 See San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1, 33-35 (1973).
11 Griswold v. Connecticut, 381 U.S. 479 (1965).
12 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
13 See Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
14 See Roe v. Wade, 410 U.S. 113, 153 (1973).
15 See Washington v. Harper, 494 U.S. 210, 221-22 (1990), and Winston v. Lee, 470 U.S. 753, 766-67 (1985).
16 It is noted that the Supreme Court has struck down state durational residence requirements for government benefits
including health care services, but the constitutional right implicated was the right to travel, not a right to health care.
See Memorial Hospital v. Maricopa Cty., 415 U.S. 250, 269 (1974), where Arizona’s one-year residency requirement
for free medical care to indigents was held to violate equal protection guarantees and the right to travel.
17 432 U.S. 464 (1977).
18 Id. at 473-474.
19 448 U.S. 297 (1980).
20 Id. at 324.
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choice regarding certain personal decisions, it “does not confer an entitlement to such funds as
may be necessary to realize all the advantages of that freedom.”21 The Court stated further,22
To translate the limitation on government power implicit in the Due Process Clause into an
affirmative funding obligation would require Congress to subsidize the medically necessary
abortion of an indigent woman even if Congress had not enacted a Medicaid program to
subsidize other medically necessary services. Nothing in the Due Process Clause supports
such an extraordinary result. Whether freedom of choice that is constitutionally protected
warrants federal subsidization is a question for Congress to answer, not a matter of
constitutional entitlement.
In other words, a woman has a constitutional right to terminate her pregnancy, but that right is not
unduly burdened if she cannot afford an abortion.23 More broadly, the Constitution does not
obligate the states or the federal government to pay for medical expenses, even for the health care
needs of poor persons.24
The Court’s use of the rational basis test for constitutional analyses of health care legislation
extends to other, related areas, such as housing25 and education.26 In the welfare area, the Court
has, at times, acknowledged the importance of public assistance to poor persons. In Goldberg v.
Kelly,27 where the Court held that due process rights attach to welfare benefits, the Court stated,28
From its founding the Nation’s basic commitment has been to foster the dignity and well-
being of all persons within its borders.... Welfare, by meeting the basic demands of
subsistence, can help bring within the reach of the poor the same opportunities that are
available to others to participate meaningfully in the life of the community.... Public
assistance, then is not mere charity, but a means to “promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our Posterity.”
While the Court recognized the state’s duty to meet the basic needs of its citizens, it declined to
impose an affirmative duty to do so, making it clear that welfare is not a constitutional right, and
the state does not have an obligation to provide resources to meet subsistence needs.29

21 Id. at 318.
22 Id.
23 See Webster v. Reproductive Health Servs., 492 U.S. 490, 507 (1989), where the Court noted that the “Due Process
Clause generally confers no affirmative right to governmental aid, even when such aid may be necessary to secure life,
liberty, or property interests.”
24 Maher v. Roe, 432 U.S. 464, 469 (1977). See also Youngberg v. Romeo, 457 U.S. 307, 317 (1982) (“[A] State is
under no constitutional duty to provide substantive services for those within its borders.”)
25 See Lindsey v. Normet, 405 U.S. 56, 74 (1972), where the Supreme Court held that housing was not a fundamental
constitutional right.
26 See San Antonio School District v. Rodriguez, 411 U.S. 1, 37 (1973), in which the Supreme Court acknowledged the
importance of public education but refused to accord it the status of a fundamental constitutional right.
27 397 U.S. 254 (1970).
28 Id. at 264-65.
29 See also Jefferson v. Hackney, 406 U.S. 535, 546-48 (1972); Dandridge v. Williams, 397 U.S. 471, 486-87 (1970).
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Equal Protection: Wealth as a “Suspect Class”
For a classification that treats people differently—such as health care services for some poor
persons but not all who are in need—to rise to the highest level of constitutional protection, the
classification must be found to be a “suspect classification” by the Supreme Court. According to
the Court, the constitutional guarantee of equal protection is not a source of substantive rights, but
rather a “right to be free from invidious discrimination in statutory classifications and other
governmental activity.”30 In cases where the Court determines state or federal governmental
classifications to be “suspect,” it will apply the strict scrutiny standard of review. Thus, the Court
has applied the strict scrutiny test to suspect classifications based on race,31 ethnicity,32 and
national origin.33
The High Court, however, has not seen fit to consider financial need or distinctions on the basis
of wealth as suspect classifications for purposes of its equal protection analysis.34 For example, in
Dandridge v. Williams,35 the Court upheld a Maryland welfare distribution scheme whereby an
upper limit was placed on the amount of assistance any one family could receive. This meant that
larger families with greater need received less aid per child than smaller families. The Court
stated the following:36
In the area of economics and social welfare a State does not violate the Equal Protection
Clause merely because the classifications made by its laws are imperfect. If the classification
has some “rational basis,” it does not offend the Constitution simply because the
classification “is not made with mathematical nicety or because in practice it results in some
inequality.”
Thus, the Court concluded that while the Constitution may require procedural safeguards for the
distribution of economic and social welfare benefits, as it held in Goldberg v. Kelly, it “does not
empower this Court to second-guess state officials charged with the difficult responsibility of
allocating limited public welfare funds among the myriad of potential recipients.”37 The Court has
reaffirmed this holding in subsequent cases.38 In like manner, in the health care area, the Court
has again applied the more deferential “rational basis” standard of review in assessing the
constitutionality of distinctions or classifications in the provision of health care on the basis of
wealth. Health care legislation will generally be upheld so long as the government can show a
legitimate purpose and a rational basis for carrying out the program.

30 Harris v. McRae, 448 U.S. at 322.
31 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); McLaughlin v. Fla., 379 U.S. 184, 192 (1964).
32 See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 290-91 (1978).
33 See Oyama v. Cal., 332 U.S. 633, 646 (1948); see also, Korematsu v. United States, 323 U.S. 214, 216 (1944).
34 The Court has acknowledged that “laws and regulations allocating welfare funds involve ‘the most basic economic
needs of impoverished human beings,’” but the Court still has upheld classifications based on wealth where the
government can show a reasonable basis for the distinctions. Maher v. Roe, 432 U.S. at 479, quoting Dandridge v.
Williams, 397 U.S. 471, 485 (1970).
35 397 U.S. 471 (1970).
36 Id. at 485.
37 Id. at 487.
38 For example, United States v. Kras, 409 U.S. 434 (1973); Maher v. Roe, 432 U.S. 464, 469 (1977); Harris v. McRae,
448 U.S. 297, 324 (1980).
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Exception: Under Government Control
The Supreme Court has held that persons under governmental control, in circumstances where
they are dependent upon the government for their basic needs, have a right to a minimal amount
of medical care. However, the Supreme Court has not based its decisions defining a right to
medical care for persons with limited freedoms on a fundamental right to health care.39 Rather, in
the case of prisoners, the Supreme Court has held that they are entitled to adequate food, clothing,
shelter, and medical care as a component of the protections accorded by the Eighth Amendment.40
“[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and
wanton infliction of pain,’... proscribed by the Eighth amendment,” said the Court, raising the
possibility of pain and suffering that can amount to cruel and unusual punishment.41 In like
manner, involuntarily confined mentally disabled patients have a right to safe conditions,
including food, shelter, and medical care, as well as minimally adequate training to avoid
placement in physical restraints, as part of their substantive liberty interests guaranteed by the
Due Process Clause of the Fourteenth Amendment.42
Federal Power to Provide for and Fund Health
Care Programs
While the Constitution and Supreme Court interpretations do not identify a constitutional right to
health care at the government’s expense, Congress has enacted numerous statutes which establish
and define specific statutory rights of individuals to receive medical services from the
government. In addition, other statutes such as Title VI of the Civil Rights Act of 1964,43 which
prohibits discrimination under federally funded programs, affect the manner of delivery of
services under federal grants and programs. As a major component of many health care
entitlement statutes, Congress has provided funding to pay for the health care services offered
under law. Most of these statutes have been enacted pursuant to Congress’s authority to “make all
Laws which shall be necessary and proper” to carry out its mandate “to … provide for ... the
general Welfare.”44

39 William P. Gunnar, The Fundamental Law That Shapes the United States Health Care System: Is Universal Health
Care Realistic Within the Established Paradigm? 15 ANN. HEALTH L. 151, 164 (2006).
40 Farmer v. Brennan, 511 U.S. 825, 832 (1994).
41 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). See also West v.
Atkins, 487 U.S. 42, 56 (1988) (“Contracting out prison medical care does not relieve the State of its constitutional
duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the
means to vindicate their Eighth Amendment rights”).
42 Youngberg v. Romeo, 457 U.S. 307, 315 (1982). By statute, Congress has mandated medical care for persons under a
federal quarantine or isolation order, another example of the provision of medical care by the government for persons
with limited freedoms. 42 U.S.C. §249(a).
43 42 U.S.C. §2000d. Specifically, under Title VI, “[n]o person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving federal financial assistance.” It has been suggested that Title VI “arguably was highly
effective at eliminating segregation among physicians in hospitals, ending high prepayment requirements for black
patients, and eliminating discriminatory routing of ambulances.” (footnote omitted) (Jennifer Gores, ed., Health Care
Law: Health Care Access, 8 GEO. J. GENDER & L. 837, 842 (2007)).
44 U.S. CONST. Article I, §8, clause 18 and clause 3. Congress also has the power to regulate health care under its power
to regulate interstate commerce, and has done so when it has directly regulated the health care industry. Examples
(continued...)
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In 2010, Congress enacted comprehensive health care reform legislation, the Patient Protection
and Affordable Care Act, P.L. 111-148. This statute imposes new requirements on individuals,
employers, and the private health insurance market, and expands the Medicaid program, among
other provisions. In doing so, Congress used its power to regulate interstate commerce, as well as
its power to tax and spend for the general welfare.
The Taxing and Spending Power
The most frequently utilized grant of power in the Constitution for health care spending is that
found in Article I, Section 8, clause 1, which states in part that “[t]he Congress shall have Power
to lay and collect Taxes, ... to ... provide for the ... general Welfare of the United States.”45 The
last paragraph of this section provides that Congress shall have the authority “to make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers.” The
“foregoing Powers” include this specific power, popularly known as the taxing and spending
power. Other powers in Section 8 for which Congress has the authority to enact “necessary and
proper” laws include Congress’s power to provide for the common defense (clause 1), to pay the
debts of the United States (clause 1), to borrow money (clause 2), to regulate interstate commerce
(clause 3), to set citizenship requirements (clause 4), to coin money (clause 5), and to declare war
(clause 11).
The Supreme Court has recognized that Congress’s power to tax is extremely broad. In United
States v. Doremus, the Court stated that “[i]f the legislation enacted has some reasonable relation
to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated
because of the supposed motives which induced it.”46 In like manner, the power to spend for the
general welfare is one of the broadest grants of authority to Congress in the United States
Constitution.
The scope of the national spending power was brought before the United States Supreme Court in
a landmark case in 1937 dealing with the newly enacted Social Security Act.47 In Steward
Machine Co. v. Davis,48 the Court sustained a tax imposed on employers to provide
unemployment benefits to individual workers. It was argued that the tax and a state credit that

(...continued)
include the Employee Retirement Income Security Act of 1974 (ERISA) which regulates employee benefits, including
health insurance, 29 U.S.C. §1001 et seq.; the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA),
which provides for insurance continuation requirements for certain persons who lose employment-related health
insurance benefits, 29 U.S.C. §§1161-1168; various health insurance plan mandates for childbirth delivery hospital
stays, breast reconstruction payments for mastectomies, and certain mental health coverage annual and life-time limit
requirements, 29 U.S.C. §§1185, 1185a, 1185b; and, most recently, an individual mandate, for most Americans, to have
health insurance coverage, which begins in 2014, Section 1501 of P.L. 111-148.
45 It is noted that the Tenth Amendment provides that “powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the people.” While this language would
appear to represent one of the clearest examples of a federalist principle in the Constitution, it has not had a significant
impact on limiting federal powers. See, for a general discussion of constitutional federalism principles, CRS Report
RL30315, Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power, by Kenneth
R. Thomas.
46 249 U.S. 86, 93 (1919). For a discussion of certain limitations that do apply to Congress’s power to tax, see,
generally, CRS, United States Constitution: Analysis and Interpretation, coordinated by Kenneth R. Thomas.
47 42 U.S.C. §401 et seq.
48 301 U.S. 548 (1937).
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went with the state’s tax were “weapons of coercion, destroying or impairing the autonomy of the
States.”49 The Supreme Court, however, held that relief of unemployment was a legitimate object
of federal spending under the “general welfare” clause, and that the Social Security Act, which
also included old age benefits for individuals so they might not be destitute in their old age,50 as
well as provisions for child welfare and maternal child health projects, was a legitimate attempt to
solve these problems in cooperation with the states.51
Subsequent Supreme Court decisions have not questioned Congress’s policy decisions as to what
kinds of spending programs are in pursuit of the “general welfare,” and so numerous programs
have been funded in such diverse areas as education, housing, veterans’ benefits, the
environment, welfare, health care, scientific research, the arts, community development, and
public financing of election campaigns. The Supreme Court accords great deference to a
legislative decision by Congress that a particular spending program provides for the general
welfare. Indeed, the High Court has suggested that the question whether a spending program
provides for the general welfare is one that is entirely within the discretion of the legislative
branch. Thus, in Buckley v. Valeo,52 the Supreme Court held that federal funding of election
campaigns was a proper exercise of Congress’s power to spend for the general welfare:53
Appellants’ “general welfare” contention erroneously treats the General Welfare Clause as a
limitation upon congressional power. It is rather a grant of power, the scope of which is quite
expansive, particularly in view of the enlargement of power by the Necessary and Proper
Clause…. It is for Congress to decide which expenditures will promote the general
welfare…. In this case, Congress was legislating for the “general welfare”—to reduce the
deleterious influence of large contributions on our political process, to facilitate
communication by candidates with the electorate, and to free candidates from the rigors of
fundraising…. Whether the chosen means appear “bad,” “unwise,” or “unworkable” to us is
irrelevant; Congress has concluded that the means are “necessary and proper” to promote the
general welfare, and we thus decline to find this legislation without the grant of power in Art.
I, §8.
Federally Funded Health Care Programs
The Medicare program, established as Title XVIII of the Social Security Act in 1965,54 is the
largest health care program enacted by Congress pursuant to its power to tax and spend for the
general welfare. Medicaid (Title XIX),55 also enacted in 1965, and the Children’s Health

49 Id. at 591.
50 See Helvering v. Davis, 301 U.S. 619 (1937), which upheld the old-age benefits provisions of Title II of the Social
Security Act.
51 Steward Machine Co. v. Davis, 301 U.S. 548, 591 (1937). The Supreme Court has suggested that there are limits to
Congress’s power under the Spending Clause to require states to meet grant conditions. For more information, see CRS
Report RL30315, Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power, by
Kenneth R. Thomas.
52 424 U.S. 1 (1975).
53 Id. at 90-91.
54 Medicare is a federal health insurance program for persons aged 65 and older, certain other groups of persons such as
persons with disabilities, and persons living with end-stage renal disease. 42 U.S.C. §1395 et seq. For more information
on the Medicare program see CRS Report R40425, Medicare Primer, coordinated by Patricia A. Davis.
55 Medicaid is a needs-based program that provides low-income persons with broad coverage for medical services. 42
U.S.C. §1396 et seq. The states may participate in this grant program by submitting a state plan meeting federal
requirements to the Department of Health and Human Services. 42 U.S.C. §1396a(b). The federal government and the
(continued...)
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Insurance Program (CHIP) (Title XXI),56 enacted in 1997, are examples of voluntary federal/state
partnership programs providing health care benefits to certain low-income persons. The Supreme
Court has not taken a case challenging these health care programs as an unconstitutional exercise
of Congress’s taxing and spending power, possibly because the law on this point was settled by its
earlier 1937 decision, discussed above, upholding Title II (Old Age Benefits) and Title III
(Unemployment Compensation) of the same act.
Another example of a health care program is the Hospital Survey and Construction Act57 (Hill-
Burton Act), enacted in 1946, which offers federal construction funds to hospitals, nursing homes,
and other health facilities on the condition that the facilities provide a reasonable volume of
services to indigent patients, and make their services available to all persons residing in the
facility’s area.58 Congress has also created a statutory right to certain emergency services under
the Emergency Medical Treatment and Active Labor Act (EMTALA).59 EMTALA imposes a legal
obligation on hospitals that participate in Medicare to provide screening, examination, and
stabilization of emergency medical conditions and women in labor, prior to transferring them to
another facility.60
In addition, Congress has provided for health care services in many other contexts, including
access to health care services for uninsured and underinsured persons through tax incentives to
non-profit organizations such as hospitals for providing charitable care,61 and by grant programs
that fund certain “safety net providers,” such as community health centers, migrant health centers,
and other health facilities that serve medically underserved populations.62
Requirements Under the Patient Protection and Affordable Care
Act, Including the Individual Mandate to Purchase Health
Insurance
On March 23, 2010, the President signed into law H.R. 3590, the Patient Protection and
Affordable Care Act (ACA), P.L. 111-148,63 a comprehensive health care reform bill. ACA,

(...continued)
states jointly share the costs of providing benefits to persons meeting Medicaid eligibility requirements. See CRS
Report RL32950, Medicaid: The Federal Medical Assistance Percentage (FMAP), by Alison Mitchell and Evelyne P.
Baumrucker.
56 CHIP is a federal matching block grant program that provides health care services for certain uninsured children
without access to Medicaid. 42 U.S.C. §1397 et seq. See, for more information, CRS Report R40444, State Children’s
Health Insurance Program (CHIP): A Brief Overview, by Elicia J. Herz and Evelyne P. Baumrucker
57 42 U.S.C. §§291 to 291o-1.
58 See HHS website on the Hill-Burton Act at http://www.hrsa.gov/hillburton/default.htm.
59 42 U.S.C. §1395dd and regulations at 42 C.F.R. §489.24. For more information on EMTALA, See CRS Report
RS22738, EMTALA: Access to Emergency Medical Care, by Edward C. Liu.
60 42 U.S.C. §1395dd(a)-(c).
61 See 26 U.S.C. §501(c)(3), which provides for an exemption from federal income tax for corporations organized and
operated exclusively for religious, charitable, or educational purposes, provided no part of the organization’s net
earnings inures to the benefit of any private shareholder or individual. Under Rev. Rul. 69-545, 1969-2 C.B. 117, the
IRS recognized “promotion of health” as a charitable purpose when a “community benefit” standard is met. See CRS
Report RL34605, 501(c)(3) Hospitals and the Community Benefit Standard, by Erika K. Lunder and Edward C. Liu.
62 See CRS Report RL32046, Federal Health Centers Program, by Barbara English.
63 As amended by the Health Care and Education Reconciliation Act of 2010, P.L. 111-152.
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which will be fully implemented by 2014, will restructure the private health insurance market,
particularly for individuals purchasing coverage on their own (who may qualify for premium
credits) and small businesses, partly by supporting states’ creation of “American Health Benefit
Exchanges” through which eligible individuals and small businesses can access private insurers’
plans.64 Considerable attention has been paid to Section 1501 of Title I of ACA, which will
impose a mandate for most individuals to have health insurance or pay a penalty for
noncompliance, beginning in 2014.65 Under this provision, individuals will be required to
maintain minimum essential coverage for themselves and their dependents. Those who do not
will be required to pay a penalty for each month of noncompliance. Some individuals will be
provided subsidies to help pay for their premiums and cost-sharing. Others would be exempt from
the individual mandate.66
Beginning in 2014, or sooner at state option, nonelderly, non-pregnant individuals with income
below 133% of the federal poverty level will be newly eligible for Medicaid. From 2014 to 2016,
the federal government will cover 100% of the Medicaid costs of these newly eligible individuals,
with the percentage dropping to 90% (with states covering the difference) by 2020. This change
represents the most significant expansion of Medicaid eligibility in many years. In addition, the
health reform law adds new mandatory benefits to Medicaid, including, for example, coverage of
services in free-standing birthing centers and tobacco cessation services for pregnant women. The
new law also expands state options for providing home- and community-based services as an
alternative to institutional care, and provides financial incentives to states to do so. Among the
Medicaid financing changes, the health reform law reduces Medicaid disproportionate share
hospital allotments, increases certain pharmacy reimbursements, increases primary care physician
payment rates for selected preventive services, and increases federal spending for the territories.67
Lawsuits Challenging the Constitutionality of the Individual Health Insurance
Mandate and Expansion of the Medicaid Program Under ACA
Florida v. U.S. Department of Health and Human Services
Several lawsuits have been filed in various federal courts challenging the constitutionality of the
individual health insurance mandate and expansion of the Medicaid program under PPACA. On
March 23, 2010, 13 states filed a lawsuit in Florida contending “[t]he Act represents an
unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective

64 For a overview of this law see CRS Report R41664, ACA: A Brief Overview of the Law, Implementation, and Legal
Challenges, coordinated by C. Stephen Redhead.
65 Section 1501 of P.L. 111-148, 42 U.S.C. § 18091.
66 Exempt individuals include those with qualifying religious exemptions, those in a health care sharing ministry,
individuals not lawfully present in the United States, and incarcerated individuals. No penalty will be imposed on those
without coverage for less than 90 days (with only one period of 90 days allowed in a year), members of Indian tribes,
individuals whose household income does not exceed 100% of the federal poverty level, or any individual who the
Secretary of HHS determines to have suffered a hardship with respect to the capability to obtain coverage under a
qualified health plan. For more information about this, and related, provisions, see CRS Report R42069, Private Health
Insurance Market Reforms in the Patient Protection and Affordable Care Act (ACA), by Annie L. Mach and Bernadette
Fernandez.
67 For more information on the Medicaid provisions in ACA, see CRS Report R41210, Medicaid and the State
Children’s Health Insurance Program (CHIP) Provisions in ACA: Summary and Timeline, by Evelyne P. Baumrucker
et al.
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states, by mandating that all citizens and legal residents of the United States have qualifying
health care coverage or pay a tax penalty.... By imposing such a mandate, the Act exceeds the
powers of the United States under Article I of the Constitution and violates the Tenth Amendment
to the Constitution.”68 Several other states, certain individuals, and the National Federation of
Independent Business have since joined in the lawsuit, Florida v. U.S. Department of Health and
Human Services, bringing the total number of participating states to 26.69 This lawsuit also
contends that the financial burdens imposed on the states by the legislation’s expansion of
Medicaid “commandeers” states to devote their financial resources to achieve federal aims,
thereby violating the Tenth Amendment to the Constitution. The states contend that the only
alternative to spending billions more would be to drop out of the program, leaving millions of
current Medicaid beneficiaries without health care coverage.70
On January 31, 2011, Judge Vinson of the District Court of the Northern District of Florida ruled
that “Congress exceeded the bounds of its authority in passing the Act with the individual
mandate,”71 and so struck down the entire health care reform law. The court held that the
requirement in Section 1501 of ACA that individuals purchase health insurance or pay a penalty
exceeded Congress’s power under the Commerce Clause and, as such, could not be reconciled
with a limited government of enumerated powers. The court also found that the requirement to
purchase health insurance could not be severed from the rest of the statute, so the entire statute
was struck down, although no injunction enjoining implementation of the statute was issued. The
judge dismissed a separate claim by the plaintiffs challenging the Medicaid expansion in ACA.
The court stated that “state participation in the Medicaid program under the Act is—as it always
has been—voluntary.”72 The court found very little support for the plaintiff’s coercion argument,
noting that every single federal circuit court that had considered the issue has rejected the
coercion theory as a viable claim.73 On March 3, Judge Vinson, in response to a motion to
“clarify” his decision regarding the constitutionality of ACA filed by the Administration, ruled
that he would not require the Administration to cease implementation of ACA, but did require the
Administration to move forward on its appeal of his decision within seven days.74 He stated that
imposing a stay on implementation would be unnecessarily disruptive and asked the

68 Florida v. U.S. Department of Health and Human Services, No. 3:10-cv-00091-RV-EMT, U.S. District Court for the
Northern District of Florida (Pensacola). The original complaint (in which the following states joined Florida: AL, CO,
ID, LA, MI, NE, PA, SC, SD, TX, UT, WA) is available at http://myfloridalegal.com/webfiles.nsf/WF/MRAY-
83TKWB/$file/HealthCareReformLawsuit.pdf.
69 The additional states are AK, IN, ND, MS, NV, AZ, GA, OH, KS, WY, WI, ME, IA. The amended complaint may
be found at http://myfloridalegal.com/webfiles.nsf/WF/JFAO-8D8SWY/$file/SecondAmendedComplaint.pdf.
Additional information about this lawsuit may be found at http://www.healthcarelawsuit.us/.
70 It is noted that, even though it may be difficult as a practical matter for states to drop out, there is no requirement for
states to participate in the Medicaid program. In addition, the Supreme Court has long upheld spending power
programs, like Medicaid, that require states to comply with federal program requirements. See, e.g., South Dakota v.
Dole, 483 U.S. 203 (1987).
71 See Florida v. U.S. Department of Health and Human Services, 780 F. Supp 2d 1256 (N.D. Fla. 2011).
72 Id. at 1267.
73 In addition, the court noted that two plaintiff states had acknowledged that they can withdraw from the Medicaid
program and were considering doing so. Id. at 1267-1268.
74 Judge Vinson’s order may be viewed at http://myfloridalegal.com/webfiles.nsf/WF/JDAS-8ELRD7/$file/
VinsonOrderGrantingDOJMotiontoClarify3_3_11.pdf. On March 10, 2011, both parties requested an expedited appeal
to the United States Court of Appeals for the 11th Circuit.
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Administration to request expedited consideration in either the federal appeals court or the U.S.
Supreme Court.75
On August 12, 2011, a divided three-judge panel of the U.S. Court of Appeals for the 11th Circuit
struck down the individual health insurance mandate in PPACA in the Florida lawsuit, but
stopped short of declaring the entire statute unconstitutional.76 In an opinion by Chief Judge Joel
F. Dubina, joined by Judge Frank M. Hull, the court said that “(t)he federal government’s
assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to
purchase insurance from a private company for the entire duration of their lives is unprecedented,
lacks cognizable limits and imperils our federalist structure.”77 Unlike the district court decision
under review, the circuit court severed the individual mandate from the remainder of ACA. The
circuit court, however, agreed with the district court that the Medicaid expansion provision was
constitutional, “especially when the federal government will bear nearly all the costs of the
program’s amplified enrollments.”78 These issues were appealed to the U.S. Supreme Court by
the respective parties.79 On November 14, 2011, the United States Supreme Court granted
certiorari in this case.80 The High Court agreed to examine four questions dealing with the
following issues: (1) constitutionality of the minimum essential coverage requirement, known as
the “individual mandate”; (2) severability of the individual mandate from the rest of ACA; (3)
whether the challenge to the individual mandate is barred by the Anti-Injunction Act81 which
prohibits lawsuits seeking to restrain the assessment or collection of a tax; and, (4) whether
ACA’s expansion of Medicaid exceeded Congress’s power to attach conditions to its grants.82
Virginia ex rel. Cuccinelli v. Sebelius
A separate lawsuit, Virginia ex rel. Cuccinelli v. Sebelius, was filed by Virginia on the same day as
the Florida lawsuit.83 This lawsuit also challenges the individual health insurance mandate, but
within the context of a recent Virginia law, discussed below, which arguably is inconsistent with
the federal individual health insurance mandate, by stating that no resident of Virginia “shall be
required to obtain or maintain a policy of individual insurance coverage.”84 On August 2, 2010,
District Court Judge Henry E. Hudson denied HHS and the Department of Justice’s motion to

75 Id. at 20.
76 Florida v. U.S. Department of Health and Human Services, 648 F. 3d 1235 (11th Cir 2011).
77 Id. at 1313.
78 Id. at 1328.
79 Writs of certiorari were filed regarding contested issues by Florida, HHS and the National Federation of Independent
Business: Florida v. U.S. Department of Health and Human Services, U.S., No. 11-400, filed September 27, 2011; HHS
v. Florida, U.S., No. 11-398, filed September 28, 2011; and, National Federation of Independent Business v. Sebelius,
U.S., No. 11-393, filed September 28, 2011.
80 Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011), cert. granted, (U.S. Nov. 14, 2011)(Nos. 11-393, 11-398, 11-400).
81 26 U.S.C. § 7421.
82 http://www.supremecourt.gov/orders/courtorders/111411zor.pdf.
83 Virginia ex rel. Cuccinelli v. Sebelius, No. 3:10cv188, U.S. District Court for the Eastern District of Virginia
(Richmond), complaint available at http://www.vaag.com/PRESS_RELEASES/Cuccinelli/
Comm%20v.%20Sebelius%20-%20Complaint%20filed%20with%20Court%20_323_10.pdf.
84 See discussion, supra, “State Attempts to “Nullify” or “Opt Out” of Federal Health Care Reform Requirements,” and
footnote 112. Ordinarily, federal law preempts state law; however, this lawsuit alleges that the Virginia statute should
prevail because the federal law’s mandate to purchase health insurance is unconstitutional.
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dismiss the lawsuit, allowing the case to move forward.85 On December 13, 2010, Judge Hudson
ruled that the requirement in Section 1501 of ACA that individuals purchase health insurance is
unconstitutional because it exceeds Congress’s authority under the Commerce Clause.86 The court
explained that in order for a statute to survive a constitutional challenge under the Commerce
Clause, it must, among other things, involve a self-initiated activity. Requiring the advance
purchase of insurance based on a future need for health care services, the court found, is not an
activity supported by Commerce Clause jurisprudence.87 On February 8, 2011, Virginia Attorney
General Kenneth Cuccinelli filed a petition asking the United States Supreme Court to review the
district court’s decision, bypassing review at the appellate court level. On April 25, 2011, the
High Court denied Virginia’s request to expedite the case.88 The case was argued before the U.S.
Court of Appeals for the Fourth Circuit on May 10, 2011.89
On September 8, 2011, a panel of the Fourth Circuit Court of Appeals ruled, 3-0, that Virginia
does not have standing to challenge the individual health insurance mandate under Section 1501
of PPACA. Judge Diana Gribbon Motz wrote the unanimous opinion in Virginia ex rel. Cuccinelli
v. Sebelius,90 vacating the district court’s ruling in the case and instructing the lower court to
dismiss the suit. Because the court held that Virginia did not have standing to bring its lawsuit, the
court did not reach the merits of the case, and so did not address the issue of whether Congress
exceeded its authority by enacting a provision requiring most persons to purchase health
insurance. The court said that the individual health insurance mandate did not apply to the state,
and therefore, the state could not demonstrate that it would suffer an injury in fact should the
mandate be upheld. The court specifically rejected Virginia’s argument that it had standing due to
the conflict between ACA’s individual mandate and the Virginia Health Care Freedom Act
(VHCFA), which attempted to nullify the federal law. “[T]he mere existence of a state law like
the VHCFA does not license a state to mount a judicial challenge to any federal statute with
which the state law assertedly conflicts,” the court said.91 A state does not “acquire some special
stake in the relationship between its citizens and the federal government merely by memorializing
its litigation position in a statute.” On September 30, 2011, a petition for a writ of certiorari was
filed with the U.S. Supreme Court.92
Thomas More Law Center v. Obama, Liberty University v. Geithner, Mead v.
Holder, and Other Lawsuits
Another lawsuit, Thomas More Law Center v. Obama, was filed by the Thomas More Law
Center, a national public interest law firm, on behalf of itself and four individuals, alleging that
“Congress lacks authority under the Commerce Clause of the Constitution to force private
citizens, including Plaintiffs, under penalty of Federal law, to purchase health care coverage.”93

85 Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 598 (Ed. Va. 2010).
86 Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 768 (Ed. Va. 2010).
87 Id. at 788.
88 Virginia ex rel. Cuccinelli v. Sebelius, No. 10-1014, , review denied, 2011 U.S. LEXIS 3247 (April 25, 2011).
89 Virginia ex rel. Cuccinelli v. Sebelius, No. 11-1057, Circuit Court of Appeals for the Fourth Circuit.
90 656 F. 3d 253 (4th Cir. 2011).
91 Id. at 269.
92 Virginia v. Sebelius, U.S., No. 11-420, petition for a writ of certiorari filed September 30, 2011.
93 Thomas More Law Ctr. v. Obama, No. 2:10-cv-11156-GCS-RSW, U.S. District Court for the Eastern District of
Michigan, complaint available at http://www.thomasmore.org/downloads/sb_thomasmore/
(continued...)
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On October 7, 2010, Judge George Caram Steeh of the U.S. District Court for the Eastern District
of Michigan issued an order denying a motion for a preliminary injunction from the Thomas
More Law Center and individual plaintiffs.94 The court found that the federal requirement to
purchase health insurance, “which addresses economic decisions regarding health care services
that everybody eventually, and inevitably, will need, is a reasonable means of effectuating
Congress’ goal.”95 On June 29, 2011, a divided three-judge panel of the U.S. Court of Appeals for
the Sixth Circuit affirmed the decision of the district court.96 Judge Jeffrey Sutton, who delivered
the opinion for the court, rejected the plaintiffs’ challenge to the minimum individual health
coverage provision, holding that the minimum coverage provision was a valid exercise of
Congress’s legislative power under the Commerce Clause. On July 26, 2011, the plaintiffs filed
an appeal directly to the U.S. Supreme Court.97
In another case, Liberty Univ., Inc. v. Geithner, Liberty University officials and five state
residents argued that Congress exceeded its constitutional authority by requiring the university
and other businesses that employ more than 50 people to provide health insurance coverage. The
lawsuit also challenged ACA’s individual mandate. The U.S. District Court for the Western
District of Virginia, on November 30, 2010, upheld the constitutionality of the individual mandate
and dismissed Liberty University’s lawsuit.98 On September 8, 2011, in a 2-1 decision of a three-
judge panel, the Fourth Circuit Court of Appeals vacated the district court’s decision upholding
the individual mandate, and ordered the lower court to dismiss the university’s lawsuit.99 The
court held that the plaintiffs did not have standing to challenge the individual health insurance
mandate because the financial penalties under the act amounted to a tax. Under the Anti-
Injunction Act,100 a person must wait to oppose a tax until after it is collected. Since the mandate
will not go into effect until 2014, the court does not have jurisdiction to rule on the mandate’s
constitutionality until that time. Judge Diana Gribbon Motz, who wrote the majority opinion,
stated that “[b]ecause this suit constitutes a pre-enforcement action seeking to restrain the
assessment of a tax, the Anti-Injunction Act strips us of jurisdiction.”101 Judge James A. Wynn Jr.
wrote a concurring opinion and Judge Andre M. Davis dissented. Judge Davis would have
reached the merits and would have held the individual mandate constitutional. On October 7,
2011, a petition for a writ of certiorari was filed with the U.S. Supreme Court.102

(...continued)
TMLCFilesCourtChallengeMomentsAfterObamaHealt.pdf.
94 Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010). Judge Steeh’s court order may be found
at http://www.mied.uscourts.gov/News/Docs/09714485866.pdf.
95 Id. at 895.
96 Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. Mich. 2011), available at http://www.ca6.uscourts.gov/
opinions.pdf/11a0168p-06.pdf.
97 Thomas More Law Ctr. v. Obama, U.S., No. 11-117, petition for review filed July 26, 2011.
98 753 F. Supp. 2d 611 (W.D. Va. 2010). The court’s decision may be viewed at http://www.vawd.uscourts.gov/
OPINIONS/MOON/LIBERTYUNIVERSITYVGEITHNER.PDF.
99 Liberty Univ., Inc. v. Geithner, 2011 U.S. App. LEXIS 18618, 2011 WL 3962915 (4th Cir. Va. 2011), available at
http://pacer.ca4.uscourts.gov/opinion.pdf/102347.P.pdf.
100 26 U.S.C. § 7421(a).
101 Id. at 7.
102 Liberty Univ., Inc. v. Geithner, U.S., No. 11-438, petition for a writ of certiorari filed October 7, 2011.
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A district court judge in Mead v. Holder103 also upheld the constitutionality of the minimum
coverage provision of ACA. On November 8, 2011, in a 2-1 decision, the Court of Appeals for the
District of Columbia Circuit affirmed the district court’s ruling.104 Judge Laurence Silberman
wrote the court’s majority opinion which found that the minimum coverage requirement of ACA
is within Congress’s powers. Judge Brett Kavanaugh’s dissent disagreed with the conclusion,
without taking a position on the merits of the law, stating that the case lacks standing until the law
takes effect in 2014.
Other lawsuits have also been filed in various district courts and are awaiting judicial action;
some cases have been dismissed on procedural grounds.105 For example, a New Jersey physician,
his patient, and a physicians’ group challenged the individual health insurance mandate, but the
district court dismissed the plaintiffs’ challenge stating that they did not have standing to bring the
lawsuit.106 On August 3, 2011, the U.S. Court of Appeals for the Third Circuit affirmed the district
court’s ruling.107
There is now a split in the circuit courts, with the 11th Circuit Court of Appeals invalidating the
individual health insurance mandate in ACA, the Sixth Circuit Court of Appeals and the District
of Columbia Circuit upholding the same provision, and the Fourth Circuit Court of Appeals
dismissing two court cases for lack of standing. Four cases were appealed to the Supreme Court
for review.108 On November 14, 2011, the United States Supreme Court granted certiorari and
agreed to review the 11th Circuit’s decision in Florida v. HHS.109 The High Court agreed to
examine four questions dealing with the following issues: (1) whether the challenge to the
individual mandate is barred by the Anti-Injunction Act110 which prohibits lawsuits seeking to
restrain the assessment or collection of a tax; (2) constitutionality of the minimum essential
coverage requirement, known as the “individual mandate”; (3) severability of the individual
mandate from the rest of ACA; and, (4) whether ACA’s expansion of Medicaid exceeded
Congress’s power to attach conditions to its grants.111
For a comprehensive analysis of the various constitutional issues raised by the individual
requirement to purchase health insurance in Section 1501 of ACA, see CRS Report R40725,
Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, by Jennifer Staman
et al.

103 Mead v. Holder, 766 F. Supp. 2d 16 (D.C. 2011) available at http://www.justice.gov/healthcare/docs/mead-v-holder-
memo-opinion.pdf. This lawsuit, now Susan Seven-Sky v. Holder, USCA Case #11-5047, was argued in the Court of
Appeals for the District of Columbia on September 23, 2011.
104 Susan Seven-Sky v. Holder, No. 11-5047, U.S. Court of Appeals for the District of Columbia (November 8, 2011)
opinion http://www.cadc.uscourts.gov/internet/opinions.nsf/055C0349A6E85D7A8525794200579735/$file/11-5047-
1340594.pdf.
105 See, e.g., Baldwin v. Sebelius, No. 10-1033, (S.D. Cal., filed 8/27/10), dismissed August 27, 2010. This case was
affirmed by the court of appeals in Baldwin v. Sebelius, 654 F.3d 877 (9th Cir. 2011).
106 New Jersey Physicians, Inc. v. Obama, 757 F. Supp. 2d 502 (D. N.J. 2010).
107 New Jersey Physicians, Inc v. Obama, 653 F.3d 234 (3rd Cir. 2011).
108 U.S. Supreme Court documents in these cases may be viewed on the Court’s website at
http://www.supremecourt.gov/docket/PPAACA.aspx. It is noted that the Supreme Court is holding the other cases that
have been appealed to the Court, pending its disposition of the Florida case.
109 Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011), cert. granted, (U.S. Nov. 14, 2011) (Nos. 11-393, 11-398, 11-400).
110 26 U.S.C. §7421.
111 http://www.supremecourt.gov/orders/courtorders/111411zor.pdf.
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State Attempts to “Nullify” or “Opt Out” of Federal Health Care
Reform Requirements
In addition to lawsuits brought to challenge various provisions of ACA, states have considered,
and some have passed, bills attempting to nullify, opt out of, or limit the provisions of ACA.
Some states have also enacted, with voter approval, constitutional amendments opposing federal
health reform measures. An alternative approach to opting out of federal health care requirements
has involved consideration of state legislation to create an interstate compact which would give
states primary responsibility to regulate health care goods and services.
State statutes and constitutional amendments
On March 10, 2010, Virginia became the first state in the nation to enact a statute which states
that, as a matter of law in Virginia, no individual (with certain exceptions) “shall be required to
obtain or maintain a policy of individual insurance coverage,” except as required by a court or
state agency.112 This state statute, entitled the Virginia Health Care Freedom Act, is arguably
inconsistent with Section 1501 of ACA, which requires individuals to purchase health insurance
coverage beginning in 2014.
While Virginia was the first state to pass a law relating to the federal requirement to purchase
health insurance, legislators in at least 47 state legislatures from 2009 to 2012 have introduced
bills to limit, change, or oppose various federal actions relating to health care reform, including
the mandate to purchase health insurance or implementation of a single payer system.113 Most
measures seek to make or keep health insurance optional for individuals, and to ensure that
individuals can purchase any kind of coverage they want. A Utah bill, signed into law on March
22, 2010, prohibits an individual health insurance mandate, and, in addition, prohibits any state
agency from implementing federal health reform measures without the Utah legislature
“specifically authorizing the state’s compliance or participation in, federal health care reform.”114
As of March 2012, state statutes had been enacted in Arizona, Colorado, Florida, Georgia, Idaho,
Indiana, Kansas, Louisiana, Missouri, Montana, New Hampshire, North Dakota, Oklahoma,
South Carolina, South Dakota, Tennessee, Texas, Utah, and Virginia that oppose elements of
federal health care reform provisions in ACA.115
Some proposed state measures to opt out of, or limit, federal health reform measures have been in
the form of state constitutional amendments which must be approved by a ballot vote. For
example, the resolution passed by the Arizona legislature, and approved by Arizona voters on
November 2, 2010, amended the Arizona state constitution to provide that “a law or rule shall not
compel any person, employer or health care provider to participate in any health care system.”116

112 2010 Session Law, Chapter 106, available at http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+CHAP0106+pdf,
and codified at Virginia Code Section 38.2-3430.1:1.
113 For a comprehensive and continually updated survey of state activity in this area, see National Conference of State
Legislatures, “State Legislation Challenging Certain Health Reforms, 2010,” at http://www.ncsl.org/default.aspx?
tabid=18906.
114 H.B. 67, enrolled copy available at http://le.utah.gov/~2010/bills/hbillenr/hb0067.pdf.
115 See footnote 113.
116 See Arizona HCR 2014 of 2009, available at http://www.azleg.gov/legtext/49leg/1r/bills/hcr2014h.pdf. In most
states that provide for an amendment to the state’s constitution by a ballot proposal, passage requires either a
“supermajority” or two affirmative ballot votes in two separate years.
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A similar state constitutional amendment providing in part that a “person or employer may pay
directly for lawful health care services and shall not be required to pay penalties or fines for
accepting direct payment from a person or employer for lawful health care services,” was
approved by voters in Oklahoma on November 2, 2010.117 However, Colorado voters disapproved
a similar ballot measure on the same date.118 The Wyoming state legislature has approved a
similar proposed constitutional amendment to be placed on the voter ballot on November 6, 2012,
as have Alabama and Florida.119
A direct conflict between federal and state laws would raise constitutional issues which are likely
to be resolved in favor of federal law under the Supremacy Clause of the Constitution, which
states: “This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; ... shall be the supreme Law of the Land; ... any Thing in the constitution or Laws of any
State to the Contrary notwithstanding.”120 When Congress legislates pursuant to its delegated
powers, state laws, and even state constitutional provisions, must yield. For example, in Cooper v.
Aaron, 358 U.S. 1 (1958), the U.S. Supreme Court upheld the federal law mandating
desegregation of public schools in the face of Arkansas’s constitutional amendment which
prohibited integration.121
Interstate compacts
Another approach some states have taken to oppose or opt out of the Affordable Care Act is to
enter into an interstate compact with other states. Interstate compacts are agreements between two
or more states that are used for cooperative interactions across state lines. The earliest interstate
compacts were used to settle boundary disputes; however, beginning with the establishment of the
Port of New York Authority in 1921,122 compacts began to be used to address more complex,
regional issues requiring intergovernmental cooperation. Recent interstate agreements have
addressed such wide-ranging concerns as law enforcement and crime control, education, driver
licensing and enforcement, nuclear waste control, transportation, insurance regulation, and
disaster assistance. There are approximately 200 interstate compacts in effect today.123
As of March 2012, 25 states have considered interstate compact legislation which would give
states primary responsibility for the regulation of health care goods and services, and six states,
Georgia, Indiana, Oklahoma, Missouri, Texas, and Utah, have passed legislation assenting to an

117 Oklahoma Senate Joint Resolution 59 is available at https://www.sos.ok.gov/documents/questions/756.pdf.
118 See National Conference of State Legislatures, “State Legislation Challenging Certain Health Reforms, 2011-2012,”
at http://www.ncsl.org/default.aspx?tabid=18906.
119 The Wyoming proposed constitutional amendment, SJR 2, states that residents have the right to make their own
health care decisions, while “any person may pay, and a health care provider may accept, direct payment for health care
without imposition of penalties or fines for doing so.” The proposed state constitutional amendment also provides that
the state “shall act to preserve these rights from undue governmental infringement.”
120 U.S. Const. art. VI, clause 2.
121 See also Gibbons v. Ogden, 22 U.S. 9 Wheat. 11 (1824), Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977),
and Timothy S. Jost, Can the States Nullify Health Care Reform? 362 NEW ENG. J. MED. 869-871 (March 11, 2010),
available at http://content.nejm.org/cgi/content/full/362/10/869. For a general discussion of the Supremacy Clause, see
CRS, United States Constitution: Analysis and Interpretation, coordinated by Kenneth R. Thomas, at
http://www.crs.gov/conan/default.aspx?mode=topic&doc=Article06.xml&t=1|1&c=2.
122 1921 N.Y. LAWS Ch. 154; N.J. LAWS Ch. 151; 42 Stat. 174 (1921).
123 The Council of State Governments, Interstate Compacts, “Legislation and Laws,” available at http://ssl.csg.org/
compactlaws/comlistlinks.html.
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interstate health compact.124 This health care compact, which would require approval by Congress
before it would be effective,125 provides that authority and responsibility for health care matters
would reside with the compact member states. It also provides that states would have the
authority to “suspend,” by state legislation, federal laws and regulations inconsistent with state
health care laws, and Congress would assent to providing funding on an annual basis to the states
to carry out their responsibilities.126
State Constitutions and the Provision of Health
Care Services
On the state level, governmental obligations to provide health care services either generally or for
particular groups of persons may be found in a number of state constitutions. Thirteen state
constitutions contain provisions which specifically refer to health.127 The constitutions of the
states of Alaska, Hawaii, Michigan, North Carolina, New York, and Wyoming have provisions
which require the state to promote and protect the public health.128 For example, Alaska’s
constitution provides that “[t]he legislature shall provide for the promotion and protection of
public health.”129 And Wyoming’s constitution states, “As the health and morality of the people
are essential to their well-being, … it shall be the duty of the legislature to protect and promote
these vital interests.”130 Other state constitutional provisions permit, and sometimes require,
legislative action to fund health care services for specific activities or for certain groups, such as
indigent persons. Mississippi has a constitutional provision that authorizes laws for the care of the
indigent sick in state hospitals.131 Arkansas’s constitution has a provision requiring the legislature
to provide for the treatment of the insane.132 By and large, however, state constitutional provisions
authorize, but do not require, the provision of health care services.133

124 See National Conference of State Legislatures, “Some States Pursue Health Compacts” (updated, March, 2012) at
http://www.ncsl.org/issues-research/health/affordable-care-act-state-action-newsletter-11.aspx.
125 Article 1, § 10, clause 3 of the U.S. Constitution states: “No State shall, without the Consent of Congress, . . . enter
into any Agreement or Compact with another State. . .”
126 For more information on the Health Care Compact, see http://www.healthcarecompact.org/.
127 See discussion and survey of state constitutional provisions relating to health care in article by Elizabeth Weeks
Leonard, State Constitutionalism and the Right to Health Care (updated August 13, 2009), available at
http://works.bepress.com/elizabeth_weeks/3/. See also Cynthia Soohoo and Jordan Goldberg, The Full Realization of
Our Rights: The Right to Health in State Constitutions, 60 CASE W. RES. L. REV. 997-1072 (2010).
128 See Rory Weiner, Universal Health Insurance Under State Equal Protection Law, 23 W. NEW ENG. L. REV. 327,
334 (2002).
129 ALASKA CONST. art. VII, §4 .
130 WYO. CONST. art. 7, §20.
131 HAW. CONST. art. IX, §3 and MISS. CONST. art. IV, §86.
132 ARK. CONST. art. 19, §19.
133 See, e.g., the constitution of New York, which states that “[t]he protection and promotion of the health of the
inhabitants of the state are matters of public concern and provision therefore shall be made by the state and by such of
its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.” N. Y.
CONST. art. 17, §3. According to one author, state judicial decisions construing provisions of state constitutions
“demonstrate a general reluctance to recognize affirmative, enforceable health rights.” See, generally, Leonard, Part
II.B, at 22-40, supra, footnote 127.
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Some state courts have liberally construed state constitutional provisions mandating care of the
poor to include the provision of health care services. For example, in Graham v. Reserve Life Ins.
Co.,134 a provision in the North Carolina constitution mandating “beneficent provision for the
poor” was held to require state provision of free medical treatment to indigent sick persons. And
the constitutionality of Alabama’s Health Care Responsibility Act,135 which imposed financial
responsibility for the medical care of county indigents on counties, was upheld in part on the
basis of Alabama’s constitutional provision requiring counties “to make adequate provisions for
the maintenance of the poor.”136 As a general matter, state constitutional rights may be more
expansive than those found under the federal Bill of Rights, since federal rights set the minimum
standards for the states. States are always free to provide for greater protections for their citizens
than are provided on the national level.137
The provision of health care services under a state health care program may be subject to
limitations under equal protection provisions in a state constitution. In 2009, Massachusetts
denied state subsidies for the purchase of health insurance to a category of noncitizen immigrants
lawfully residing in Massachusetts, specifically those who would be ineligible for certain federal
benefits (those in the United States for less than five years, and certain others). Prior to that time,
all lawful immigrants in Massachusetts were eligible for coverage under Massachusetts’
Commonwealth Care program, with subsidies provided for those individuals with incomes below
300% of the federal poverty level. The Supreme Judicial Court of Massachusetts, in Finch v.
Commonwealth Health Insurance Connector Authority,138 used a strict scrutiny standard of
review to determine that the state did not demonstrate a compelling interest that would justify
excluding certain classes of lawful resident aliens from the state’s subsidized health insurance
program. The court noted that the state was undergoing a financial crisis at the time the
Commonwealth Care program was amended, and that the motivation for the provision appeared
to be fiscal, which could not constitute a compelling justification for the exclusion of certain
classes of legal aliens from the subsidized insurance program. “The discrimination against legal
immigrants that [the statute’s] limiting language embodies violates their rights to equal protection
under the Massachusetts Constitution.”139
Author Contact Information

Kathleen S. Swendiman

Legislative Attorney
kswendiman@crs.loc.gov, 7-9105



134 274 N.C. 115, 161 S.E.2d 485 (1968).
135 ALA. CODE §§ 22-21-290–22-21-297.
136 Bd. of Comm’rs v. Bd. of Trs. of the Univ. of Ala., 483 So. 2d 1365, 1366 (Ala. Civ. App. 1985), and Marengo
County v. Univ. of S. Ala., 479 So. 2d 48, 51 (Ala. Civ. App. 1985). See also discussion, generally, at 333-337,
Weiner, supra, footnote 128.
137 See, e.g., Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 280-182 (1990), where the Court recognized that
Missouri was entitled to accord stronger protection to preservation of life than federal law by requiring clear and
convincing evidence to terminate life support.
138 461 Mass. 237, 959 N.E.2d 970 (2012).
139 461 Mass. at 250, 959 N.E.2d at 984.
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