Article Title

Obligatory Health


Noa Ben-Asher


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 rightsbased

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.