Obligatory health.

Author:Ben-Asher, Noa

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between liberty and equality. At a time when some scholars are emphasizing the convergence of liberty and equality, the healthcare debates accentuate the friction between these two foundational principles of American jurisprudence. Second, this Article offers a supplement to the rights-based orientation of both liberty and equality claims: the perspective of individual obligation. The Article argues that a society committed to values such as equality may sometimes need to achieve its goals through the recognition of individual obligation. The Act embodies this insight. It is legislation that simultaneously reflects social commitment to equality and the individual obligation of members of society to help others realize their basic human needs.


Of course, I believe that every child has a right to decent education and shelter, food and medical care.... I do believe and affirm the social contract that grounds those rights. But more to the point I also believe that I am commanded-that we are obligated- to realize those rights.

--Robert Cover (1)

Does every U.S. citizen have a right to affordable healthcare? If so, who is responsible for the realization of that right? In enacting the Patient Protection and Affordable Care Act ("PPACA" or "the Act") in March 2010, Congress seems to have answered "yes" to the first question. (2) This Article attempts to answer the second question by suggesting that alongside the right of individuals to affordable healthcare, we might also consider an obligation of individuals to ensure that all members of society can realize that right. The Article argues that the Patient Protection and Affordable Care Act embodies both the right and the obligation, and should be viewed as responsible and ethical legislation.

The main legal question that has busied courts and scholars is the constitutionality of Section 1501 of the Act, also known as the "Minimum Essential Coverage Provision" or "the Individual Mandate." Section 1501 requires that every U.S. citizen (other than those falling within special exceptions) maintain a monthly minimum level of health insurance coverage beginning in 2014. (3) Those who fail to comply will incur a penalty included with the taxpayer's annual return. (4) To date, two circuit courts and three district courts have upheld this provision, (5) one circuit court and two district courts have invalidated it, (6) and scholars are split on whether or not it is constitutional and how the Supreme Court will eventually rule on this question. (7)

This Article is composed of three main Parts. Part I introduces the contrast between rights and obligations as core principles of two different legal systems. In Obligations: A Jewish Jurisprudence of the Social Order, a lesser-known Article published shortly before his death, Robert Cover contrasts the American rights-based legal system with the Jewish obligation-based legal system. (8) Cover offers a fascinating account of the founding myths of the two legal systems--Mount Sinai versus the Social Contract--and argues that, for a full realization of human rights and dignities, both myths are necessary. This Part examines these founding myths in order to set the ground for a broader legal and political evaluation of the Individual Mandate.

Part II shows that the Individual Mandate has so far been considered primarily through the prism of rights. The intense legal and political debates about the Individual Mandate have so far turned on a conflict between two rights: liberty and equality. The Article demonstrates that while the validity of the Individual Mandate formally turns on Congressional power under the Commerce Clause, the underlying and more meaningful conflict here is between these two competing rights. Courts upholding the Individual Mandate have relied heavily on equality-based rationales. By contrast, courts striking down the Individual Mandate have promoted liberty-based rationales. Interestingly, whereas some recent scholarship emphasizes the convergences between liberty and equality in the jurisprudence of the Court, (9) the Individual Mandate debates accentuate the tensions between these principles.

Part III proposes that the legal, political, and cultural understanding of the Individual Mandate would greatly benefit from a perspective of individual obligation. The Article argues that a comprehensive consideration of the Individual Mandate should involve a theory of rights alongside a theory of obligations. The idea that individuals in society may have some obligation toward the healthcare of others may enrich the legal, cultural, and political assessment of the Individual Mandate.


    Just as the myth of social contract is essentially a myth of autonomy, so the myth of Sinai is essentially a myth of heteronomy.

    --Robert Cover (10)

    "Every legal Culture has its fundamental words," writes Cover. (11) The fundamental word in the American legal system is "rights," and it is based on the story of social contract. (12) This myth assumes "free and independent if highly vulnerable beings who voluntarily trade a portion of their autonomy for a measure of collective security." (13) The myth of social contract makes the state the product of individual choice (and therefore secondary to it). The individual metaphorically chooses the state by choosing to enter the social contract. As Cover explains, "'Rights' are the fundamental category because it is the normative category which most nearly approximates that which is the source of the legitimacy of everything else." (14) Individuals, under this myth, "trade in" some of their rights in exchange for collective security. The fundamental unit here is the individual, and the possession of rights locates the individual "separate and apart from every other individual." (15)

    Not all theories that are founded upon rights are individualistic. As Cover explains, "Collective solutions as well as individualistic ones are possible, but it is the case that even the collective solutions are solutions that arrive at theft destination by way of a theory that derives the authority of the collective from the individual." (16) Cover importantly reminds us that even what we think of as egalitarian collective solutions are usually based on theories of individual rights that extract the authority of the state from the rights of the individual. In that sense, both egalitarian and libertarian theories are children of the social contract story because they both trace the authority of the community back to individual rights.

    In Jewish law, the equivalent term to "right" is "mitzvah." The literal interpretation of the word "mitzvah" is commandment, but in the Hebrew language it generally means obligation. (17) The word "mitzvah" is also "intrinsically bound up in a myth-the myth of Sinai." (18) Sinai is an experience of a collective, of all of the people of Israel who were led by Moses out of Egypt. Together, as a group, they received the written law, the Torah. According to rabbinical authorities, alongside the Torah, in Sinai the "Oral Law" was given to Moses. (19)

    The myth of the social contract is one of autonomy whereas the myth of Sinai is one of heteronomy. (20) At the core of the myth of the social contract stands the individual and in the myth of Mount Sinai, the community. Cover contrasts two key features of the myths: (1) the number of imagined participants; and (2) choice or lack thereof.

    First, Cover invites us to consider the imagined participants in these two mythic lawmaking moments. It might seem silly to ask how many people attended a mythical event. But this turns out to be one of the critical aspects of both myths. What gives force to the Sinai myth is that all Jews attended it. According to Jewish tradition, "[a]ll law was given at Sinai and therefore all law is related back to the ultimate heteronomous event." (21) Thus all Jews are bound by mitzvot. It is a myth of a heteronomous event.

    A key aspect of the myth of Mount Sinai is that all future generations were present there, and are thus bound by obligation. (22) Another way of putting this is that the myth of Mount Sinai is not exactly a myth of a past event. As Franz Rosenzweig writes, "for us too, above all the miracle of Sinai, the gift of the Torah, and not even the Exodus from Egypt, signifies the Revelation which accompanies us constantly as present." (23) It is interesting that the Exodus from slavery in Egypt, as Rosenzweig emphasizes, must be remembered (in the holiday of Passover) but the Torah and Mount Sinai do not need to be remembered; they are present. (24) Hence liberty must be taught and remembered, whereas obligation is simply present.

    By contrast, a shared community experience is not part of the social contract myth. Yes, theoretically we could have all been there together. But the myth does not turn on that-or even posit that. We might imagine thousands of people calling out "I do" in an ancient stadium, but we could just as well imagine a one-by-one march of individuals into the executive boardroom to sign the Social Contract. The point is that the source of state authority and the justification for obedience to law does not turn on how many people attended the event of the social contract. In that sense, the social...

To continue reading