Pa. judge declares key part of Obama's health plan unconstitutional

U.S. Secretary of Health and Human Services Kathleen Sebelius speaks at a round table discussion with area seniors on the benefits of the Affordable Care Act, Thursday, June 30, 2011 in Cincinnati.
U.S. Secretary of Health and Human Services Kathleen Sebelius speaks at a round table discussion with area seniors on the benefits of the Affordable Care Act, Thursday, June 30, 2011 in Cincinnati. (AL BEHRMAN / Associated Press)
Posted: September 14, 2011

President Obama's plan to require individual Americans to obtain health insurance or pay a penalty, a key pillar of his health-care legislation, is unconstitutional, a federal judge ruled Tuesday in Harrisburg.

U.S. District Judge Christopher C. Conner said in a 53-page opinion that the federal government's power to regulate commerce did not give it the authority to compel individual citizens to purchase products against their will.

The lawsuit was filed by a married couple from Etters in York County against Health and Human Services Secretary Kathleen Sebelius, asking that the law be overturned. The couple, Barbara Goudy-Bachman, 48, and Gregory Bachman, 56, said they dropped their health-care coverage because of the expense - more than their monthly mortgage payments.

The couple, who operate a bait-and-tackle and marine engine-repair shop, said they preferred to pay for their health care out of pocket.

"The nation undoubtedly faces a health-care crisis . . . and the costs to all citizens are measurable and significant," Conner said. "The federal government, however, is one of limited enumerated powers, and Congress' efforts to remedy the ailing health-care and health-insurance markets must fit squarely within those powers."

The case is one of several dozen lawsuits playing out in various jurisdictions challenging the constitutionality of Obama's Patient Protection and Affordable Health Care Act, which seeks to provide health-insurance coverage to the 40-plus million Americans without insurance.

The litigation in other jurisdictions is much further advanced. The Court of Appeals for the Sixth Circuit in Cincinnati has upheld the law, while the 11th Circuit Court of Appeals in Atlanta found that the requirement that individuals purchase insurance is unconstitutional. A third panel, the Fourth Circuit Court of Appeals in Richmond, rejected challenges to the act, finding that people filing suit to overturn it did not have standing.

Decisions from each of those appeals courts have been appealed to the Supreme Court.

The split among appeals courts substantially increases the odds that the Supreme Court will take up the matter.

Carl Tobias, a constitutional-law professor at the University of Richmond School of Law, said he expected the Supreme Court to grant certiorari, or agree to hear the case, sometime this year.

Tobias said there was pressure on the court to act because the so-called individual mandate, or requirement to carry insurance, and other significant features of the law are set to take effect in 2014.

"The Supreme Court will probably grant cert. and probably this term, mainly because of the split on the merits and the difficulty of implementing that kind of complex statute in different parts of the country, under different legal regimes," he said.

The case in federal District Court in Harrisburg hinged in large measure, as it has in other jurisdictions, on the question of whether the requirement that citizens must carry health-care coverage is constitutional.

Democrats have justified this provision by saying that a program of national health-care coverage won't work unless a broad base of citizens is contributing to it financially.

Republicans have countered that the provision constitutes an unprecedented intrusion by the federal government into the lives of individual citizens.

The government based its argument on the Commerce Clause of the Constitution, which gives it the right to regulate the flow of goods and services among states.

Because the government and the private sector often pick up health-care costs of the uninsured, the Obama administration contends it is constitutional to compel citizens to purchase coverage.

Conner, who was nominated to the court by President George W. Bush in February 2002, rejected that argument, saying that the federal government had never before required citizens to buy anything in anticipation of the possibility that they might need it.

"The Supreme Court has never sanctioned under the auspices of the Commerce Clause, the enactment of a broad-scale economic mandate in anticipation of a probable but uncertain future transaction," Conner said.

The case was filed on behalf of the Bachmans by Kennett Square constitutional lawyer Paul Rossi, a solo practitioner and former associate with both the Dechert L.L.P. and Ballard Spahr L.L.P. firms.

Rossi said he became aware of the Bachmans' objections to the Obama health-care plan when they responded to his request, on a radio program, that people who wished to challenge the law contact him. Rossi, who said he is a conservative Republican, said that of the 40-plus responses he received, the Bachmans had the most compelling fact pattern.

Contact staff writer Chris Mondics at 215-854-5957 or

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