WASHINGTON BUREAU — Senior Judge Gladys Kessler, a judge who sits on the U.S. District Court for the District of Columbia, has upheld the constitutionality of an Affordable Care Act mandate that could require many individuals to buy health coverage.

Kessler says in an opinion explaining the ruling that Congress was acting within the bounds of the Commerce Clause of the U.S. Constitution when it enacted Section 1501 of the Patient Protection and Affordable Care Act (PPACA), a major component of the Affordable Care Act package.

If implemented as written, the PPACA Section 1501 will require individuals with incomes overScales of justice a certain level who have no religious objection to owning health coverage to have a minimum level of health coverage. The provision, which is set to take effect in 2014, will require individuals who fail to have a minimum level of coverage to pay a penalty.

Kessler was ruling on Margaret Lee Mead, et al, vs. Holder, C.V. 10-950.

She granted a motion to dismiss sought by the U.S. Justice Department.

MEAD VS. HOLDER

The suit was brought by Mead, 62, a self-employed resident of North Carolina who has not purchased health insurance for about 18 years.

Another plaintiff, Charles Edward Lee, Lee, 62, is a resident of Texas who has not had health insurance for 22 years.

Some of the other plaintiffs say they intend to seek medical services in the future, but intend to pay cash. Mead, Lee and a third plaintiff say they will refuse all medical services “for the remainder of their lives” for religious reasons.

THE KESSLER RULING

U.S. District judges in Florida and Virginia earlier have ruled that the PPACA individual health coverage ownership mandate is unconstitutional, because it would regulate inactivity, not simply affect actions individuals were already taking.

More than a dozen other federal judges have dismissed similar PPACA Section 1501 suits based in procedural grounds.

In the District of Columbia opinion, Kessler takes issue with the “inactivity” argument.

“It is pure semantics to argue that an individual who makes a choice to

forgo health insurance is not ‘acting,’ especially given the serious economic and health-related consequences to every individual of that choice,” Kessler writes in her opinion. “Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.”

The Commerce Clause – a section of the Constitution that gives Congress the authority to regulate economic activity – has been expanded over the years “to include regulation of those purely intrastate activities which have a substantial effect, whether direct or indirect, on interstate commerce,” Kessler says.

“The Court finds that Congress had a rational basis for its conclusion that the aggregate of individual decisions not to purchase health insurance substantially affects the national health insurance market,” Kessler says.

The Supreme Court held in an earlier case that “regulation of intrastate economic activity may be upheld if it is found to constitute ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,’” Kessler says.

In a footnote, Kessler discusses the implications of letting individuals continue to do without health coverage.

“To put it less analytically, and less charitably, those who choose–and plaintiffs have made such a deliberate choice–not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep,” Kessler says. “In short, those who choose not to purchase health insurance will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.”