A Tale of Two Mandates

An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.

At least 24 hours before the performance of an abortion, a qualified medical professional trained in sonography and working under the supervision of a physician licensed in the Commonwealth shall perform fetal transabdominal ultrasound imaging on the patient undergoing the abortion for the purpose of determining gestational age.

Two mandates; one from a piece of legislation championed by Democrats, one from legislation championed from Republicans. The first is the individual healthcare mandate from the Patient Protection and Affordable Care Act, and the second is the ultrasound mandate from HB 462, recently signed into law by Gov. McDonnell.

Both are examples of an overreach in the government’s authority to compel behavior.

The individual healthcare mandate requires that all American citizens purchase and maintain health insurance, or be “penalized” for not doing so. Supporters of the mandate point to the Constitution’s commerce clause as rationalization for the government to mandate health insurance coverage. However, an examination of the clause’s language shows that the government can neither compel a purchase by one citizen from another, nor can the government regulate a “purchase” until the act of purchasing has already taken place. Put differently, the government cannot compel you to buy a service that you may not want.

The ultrasound mandate requires that a woman considering an abortion receive an ultrasound “for the purpose of determining gestational age.” The law also requires that the woman be offered an opportunity to view the image, receive a copy of it, and hear the fetal heartbeat prior to the abortion. Supporters of this mandate argue that the government has a compelling interest in protecting life, and point to the fact that Planned Parenthood already has an ultrasound requirement as part of its standard of care.  However, if a private organization has an existing requirement to provide a service, there is no role for the government to mandate something that already exists. Further, Planned Parenthood offers ultrasounds as part of their practice, while this legislation requires them. There is no authority for the government to compel performance of a medical procedure that you may not want.

It’s interesting to hear supporters of either of these mandates talk about how the other is unconstitutional. Little do they realize that both of these mandates are examples of the government large enough to give you everything you want and take everything you have. The question often raised to challenge the healthcare mandate is “if the government can force you to buy a product, what else can they force you to do?” This is similar to the question that can be raised about the abortion mandate; if the government can force you to have a procedure, what else can they force you to do?

The answer to both questions is “whatever they’d like to do.”

That should be a cause for concern, regardless of where you are on the political spectrum.