Giving Life to the Dead: The Patient Protection and Affordable Care Act’s Impact on Freedom
of Contract as a Substantive Due Process Right.
On March 23, 2010 President Barack Obama signed The Patient Protection and
Affordable Care Act. This law attempts to regulate our health care system making it more
efficient and affordable for Americans. For example, Title I of the act mandates that all citizens
purchase health insurance. The reasoning behind this provision
However, since the Act passed, several state attorney generals have opposed this
particular provision, questioning its constitutionality. For example, Florida Attorney General
Bill McCollum has challenged the Act and “attorney generals from 19 other states joined the
Florida suit.”1 The states include, “Alabama, Alaska, Arizona, Colorado, Georgia, Indiana,
Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, Pennsylvania, South Carolina,
South Dakota, Texas, Utah, and Washington”.2 Additionally, Virginia Attorney General Ken
Cuccinelli has filed a separate suit.3
In August of 2010, a federal judge in Virginia “strongly hinted that he was inclined to
strike down all or parts of the law.”4 Judge Henry Hudson lamented, “never before has the
Commerce Clause been extended this far.”5
David G. Savage, States Opposing Reform Pin Hopes on Florida Hearing, The Los Angeles
Times, September 12, 2010.
2 Id.
3 Id.
4 David G. Savage, States Opposing Reform Pin Hopes on Florida Hearing, The Los Angeles
Times, September 12, 2010
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Commerce clause issues aside, this Act raises constitution issues overlooked by Judge
Hudson. Particularly whether citizens forced into purchasing health insurance triggers a
violation of fundamental rights protected by the constitution. There are two broad guidelines that
trigger a fundamental right analysis: The right in question either has to be implicit in our sense of
ordered liberty or deeply rooted in our nations tradition. Typically, if the answer is yes to either
of these two, then the Court infers and grants fundamental right protection.
Constitutionally, the Court construes the guarantee of fundamental rights from the due
process clause of the 14th Amendment. For example, in Lochner v. New York, the Court declared
that “[u]nder that provision no state shall deprive any person of life, liberty, or property without
due process of law.”6 The Court recognized the existence of a fundamental right to freely form
contracts.7 Justice Peckham determined “[t]he right to purchase or to sell labor is part of the
liberty protected by this amendment.”8
A. PROPONENTS ARGUMENT
Because Lochner was later overturned, proponents of the Patient Protection and
Affordable Care Act will cite Lochner when arguing that there is no fundamental right to be free
from entering into a health insurance contract. Moreover, advocates will contend that even if
Lochner has not been completely overturned, the right to freedom of contract has exceptions,
when factoring in other rights and societal needs such as affordable health care.
Ensuring a healthy citizenry has long been weighed with the utmost importance,
superseding even long established fundamental rights. For example, freedom of contract was
David G. Savage, States Opposing Reform Pin Hopes on Florida Hearing, The Los Angeles
Times, September 12, 2010.
6 Lochner v. New York, 198 U.S. 45, 52 (1905).
7 Lochner v. New York, 198 U.S. 45 (1905).
8 Lochner v. New York, 198 U.S. 45, 49 (1905).
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long held to be a fundamental right. This fundamental right reached its high-water mark in
Lochner v. New York, where the Court held that the liberty of contract was implicit in the due
process clause of the 14th Amendment.9 Yet this right was qualified when weighed against a
woman’s health. In West Coast Hotel Co. v. Parrish, the Court held that the fundamental right
of freedom of contract was limited by a state’s interest in protecting the health of women.10
Here, opponents of a Washington law invoked the due process clause of the 14th Amendment,
claiming that these women were being deprived of their fundamental right to enter into contracts.
The Court rejected this argument declaring:
In each case the violation alleged by those attacking minimum wage regulation for
women is deprivation of freedom of contract. What is this freedom? The Constitution
does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation
of liberty without due process of law. In prohibiting that deprivation, the Constitution
does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases
has its history and connotation. But the liberty safeguarded is liberty in a social
organization, which requires the protection of law against the evils which menace the
health, safety, morals, and welfare of the people. Liberty under the Constitution is thus
necessarily subject to the restraints of due process, and regulation, which is reasonable in
relation to its subject and is adopted in the interests of the community, is due process.11
Here the Court’s decision makes it constitutional to place health rights before other freedoms that
are protected under the due process clause of the 14th Amendment.
The Court came to a similar conclusion in Muller v. Oregon. Here, the issue before the
Court was whether an Oregon state law that commanded “that no female (shall) be employed in
any mechanical establishment, or factory, or laundry in this state more than ten hours during any
one day”12 was constitutional. Opponents to this legislation argued “[b]ecause the statute
attempts to prevent persons sui juris from making their own contracts [it] thus violates the
Lochner v. New York, 198 U.S. 45 (1905).
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
11 Id. at 581.
12 Muller v. State of Oregon, 208 U.S. 412, 416 (1908).
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provisions of the 14th Amendment.”13
The Court rejected such opposition to the law. The Court conceded “that the general
right to contract in relation to one’s business is part of the liberty of the individual, protected by
the 14th Amendment to the Federal Constitution.”14 However, this concession was qualified by
acknowledging that “it is equally well settled that this liberty is not absolute and extending to all
contracts, and that a state may, without conflicting with the provisions of the 14th Amendment,
restrict in many respects the individual’s power of contract.”15
Considering the right to freedom of contract may be reduced for a women’s health,
proponents of Title I of The Patient Protection and Affordable Care Act will argue this
fundamental right can be further eroded to ensure the health of all citizens. Thus, Title I, which
mandates that each citizen enter into a health insurance contract, is justified because it protects
and ensures a healthy nation. Freedom of contract will be further reduced to make way for
health laws, which make health insurance affordable and thus more accessible.
Lastly, the Patient Protection and Affordable Care Act is simply a natural expansion of
the reasoning provided by Justice Harlan in his famous dissent in Lochner v. New York.16 His
rationale was that “[i]f the end which the legislature seeks to accomplish be one to which its
power extends, and if the means employed to that end, although not the wisest or best, are yet not
plainly and palpably unauthorized by law, then the court cannot interfere."17
B. OPPONENTS ARGUMENT
Opponents will contend that the Patient Protection and Affordable Care Act violates two
Id. at 417.
Id. at 421.
15 Id.
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Lochner v. New York, 198 U.S. 45, 67 (1905).
Id. at 69.
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fundamental rights: the fundamental right to be free from contract and the fundamental right to
not have medical insurance. As to the first fundamental right, opponents of The Patient
Protection and Affordable Care Act will cite Lochner when arguing that citizens still maintain a
fundamental right in regard to contracts. As to the second fundamental right, opponents can
draw parallels to existing fundamental health rights recognized by the Supreme Court.
While Muller and West Coast Hotel overturned Lochner procedurally, the substance of
the fundamental right concerning contracts still exists; specifically the notion that citizens have a
right to be free from forced contracts. Opponents will concede that the fundamental right to
freedom of contract is not absolute. The fundamental right to freedom of contract may be
qualified under certain circumstances. For example, the restrictions placed on women in the
above mentioned cases were tolerated as necessary restrictions on the liberty guaranteed by the
14th Amendment’s Due Process clause. However, the restrictions that Title I imposes on citizens
differ considerably from the ones previously imposed.
In Muller and West Coast Hotel, the restrictions were narrowly limited to the amount of
hours that citizens could contract to. The liberty being taken away in these circumstances was
relatively small, and thus, the Court made an exception to the recognition of the fundamental
right given to citizens when entering into contracts.
Title I, on the other hand, affects all citizens in a large way. Moreover, this Act does not
limit a contract; it compels one. Restricting the workweek is one thing; mandating that citizens’
purchase a product is something else entirely. Simply because the Court was willing to grant a
few exceptions to every citizen’s fundamental right to enter into contracts does not mean that all
contract rights are revocable. While freedom of contract is no longer an absolute fundamental
right, freedom from forced contract should be.
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The argument for the fundamental right to not have medical insurance is that it is
consistent with existing health freedoms that are recognized as fundamental rights by the
Supreme Court. Many Supreme Court Justices have championed expanding fundamental rights.
For example, Justice Harlan declared, "the full scope of the liberty guaranteed by the Due
Process Clause cannot be found in or limited by the precise terms of the specific guarantees
elsewhere provided in the Constitution.”18 He further concluded “[t]his 'liberty' is not a series of
isolated points pricked out in terms of the taking of property; the freedom of speech, press, and
religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures;
and so on.”19 As such, Justice Harlan reasoned that fundamental rights must be expanded
because “[i]t is a rational continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints."20
Opponents of Title I will argue that the law places substantial arbitrary impositions on
American citizens. Moreover, the right to choose whether to purchase health insurance or not is
consistent with other constitutionally protected liberties. Many choices between an individual
and one’s body are fundamental rights protected by the Constitution. For example, women have
the fundamental right use contraceptives21 even if unmarried22 or a minor23. Additionally,
citizens have both a fundamental right to procreate24 and a fundamental right to abortions.25
Considering that the Court found both marital26 and personal privacy27 to be fundamental
Poe v. Ullman, 367 U.S. 497, 501 (1961).
Id.
20 Id.
21 Griswold v. Connecticut, 381 U.S. 479 (1965).
22 Eisenstadt v. Baird, 405 U.S. 438 (1972).
23 Carey v. Population Services International, 431 U.S. 678 (1977).
24 Skinner v. State of Oklahoma, 316 U.S. 535 (1942).
25 Roe v. Wade, 410 U.S. 113 1973.
26 Griswold v. Connecticut, 381 U.S. 479 (1965).
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rights, it does not seem far-fetched to conclude that medical privacy would be afforded the same
protection. Moreover, if individuals have a fundamental right to engage in consensual, adult sex
with whomever they want, however they want,28 then it seems that these individuals should be
able to decide for themselves how they choose to care for their health. Therefore, opponents will
contend that the Patient Protection and Affordable Care Act must be struck down because Title I
violates a citizen’s fundamental right protected under the 14th Amendment of the Constitution.
IV.
ANALYSIS
As to the Fundamental Right argument opponents will most likely win recognition as to
the first fundamental right, the right to be free from contract, and fail on recognition of the
second right to choose whether or not to purchase health insurance. Being free from forced entry
into contracts is both embedded in our nations history and implicit in our sense of ordered
liberty. As opponents of Title I point out, nowhere in our nations history has Congress mandated
its citizens to purchase anything. Considering the Court have not given citizens the right to
marry whoever they want, they seem unlikely to expand personal choice fundamental rights
anytime in the near future. Thus, the second fundamental right, right to not have medical
insurance, will most likely fail.
Conclusion
Title I breaches citizens’ fundamental right to be free from contracts and in doing so
violates the 14th Amendment Due Process Clause. For these reasons Title I of the Patient
Protection and Affordable Care Act will be struck down.
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Roe v. Wade, 410 U.S. 113 (1973).
Lawrence v. Texas, 539 U.S. 558 (2003).
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