U.S. Citizens Association v. Kathleen Sebeliux

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
U.S. CITIZENS ASSOCIATION; JAMES GRAPEK; X
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Plaintiffs-Appellants, --
MAURICE A. THOMPSON,
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Nos. 11-3327/3798
,
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Plaintiff, -
EILEEN DANNEMANN,
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v.
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KATHLEEN SEBELIUS, in her official capacity
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as the Secretary of the U.S. Department of
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Health and Human Services; TIMOTHY F.
GEITHNER, in his official capacity as the -
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Treasury; ERIC H. HOLDER, JR., in his official -
Secretary of the U.S. Department of the
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capacity as the Attorney General of the
United States; UNITED STATES OF AMERICA, -
Defendants-Appellees. N
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:10-cv-1065—David D. Dowd, Jr., District Judge.
Decided and Filed: February 1, 2013
Before: SUHRHEINRICH, STRANCH, and DONALD, Circuit Judges.
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COUNSEL
ON BRIEF: Jonathan W. Emord, EMORD & ASSOCIATES, P.C., Clifton, Virginia,
William G. Williams, KRUGLIAK, WILKINS, GRIFFITHS & DOUGHERTY CO.,
LPA, Canton, Ohio, for Appellants. Mark B. Stern, Alisa B. Klein, Dana Kaersvang,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
1
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 2
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OPINION
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JANE B. STRANCH, Circuit Judge. In this opinion we return to constitutional
challenges to the individual mandate provision of the Patient Protection and Affordable
Care Act.1 U.S. Citizens Association and two of its members, Maurice A. Thompson,
and James Grapek (“plaintiffs”),2 challenge the constitutionality of the individual
mandate, which requires each individual to purchase a health insurance policy providing
a minimum level of coverage or make a shared responsibility payment. 26 U.S.C.
§ 5000A (2010). The district court dismissed plaintiffs’ constitutional challenges to the
individual mandate, and we AFFIRM.
I. BACKGROUND AND PROCEDURAL HISTORY
U.S. Citizens Association (“USCA”) is a non-profit national civic league based
in Akron, Ohio, with approximately 27,000 members. Nearly three hundred of USCA’s
members reside in the Northern District of Ohio. USCA notes that it devotes itself to
the preservation of conservative values; favors freedom of choice in medical care and
the health insurance marketplace; and opposes efforts of the federal government to
interfere with market processes. Some of USCA’s uninsured members object to the
purchase of private health insurance because they do not believe in the effectiveness of
traditional medicine, they prefer alternative and integrative medicine, or they prefer to
focus on preventative care that is not covered by traditional health insurance policies.
Thompson is a citizen of Ohio and Grapek is a citizen of Maryland. They do not
have, nor do they wish to acquire, health insurance, but they are not exempt from
PPACA’s individual mandate. Thompson claims that he has sufficient income to pay
for required emergency medical care if necessary, and but for PPACA, he would not
1
Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education
Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively "PPACA").
2
Another plaintiff, Eileen Dannemann, voluntarily dismissed her claims.
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 3
purchase health insurance in 2014. He has started contacting insurance companies to
consider his options to comply with the individual mandate. Grapek claims that he
cannot afford health insurance and must begin saving thousands of dollars now to pay
health insurance premiums beginning in 2014.
Plaintiffs filed suit in Ohio for declaratory and injunctive relief against Kathleen
Sebelius, Secretary of the United States Department of Health and Human Services;
Timothy F. Geithner, Secretary of the United States Department of the Treasury; Eric
H. Holder, Jr., Attorney General of the United States; and the United States. Plaintiffs’
Second Amended Complaint alleged in count one that the individual mandate violates
the Commerce Clause, U.S. Const. art. I, § 8; in count two that it violates plaintiffs’
freedom of expressive and intimate association, U.S. Const. amend. I, V; in count three
that it violates plaintiffs’ right to liberty, U.S. Const. amend. V; and in count four that
it violates plaintiffs’ right to privacy, U.S. Const. amend. I, III, IV, V, IX. Defendants
moved to dismiss all four counts under Federal Rule of Civil Procedure 12(b)(6).
The district court granted the motion to dismiss in part and denied it in part. The
court declined to dismiss the suit on the doctrines of standing or ripeness, or on the
ground that the suit is barred by the Anti-Injunction Act. The court also declined to
dismiss the Commerce Clause challenge, but the court dismissed Counts Two through
Four holding, without substantive analysis, that plaintiffs’ pleading failed to satisfy the
plausibility standard of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007). The parties then filed motions for summary judgment
on the Commerce Clause challenge.
While the summary judgment motions were pending, the district court sua sponte
entered a partial judgment under Federal Rule of Civil Procedure 54(b) on Counts Two
through Four and subsequently denied plaintiffs’ motion for clarification or in the
alternative, for reconsideration of that decision. Plaintiffs filed a timely notice of appeal
from the Rule 54(b) partial judgment.
The district court thereafter stayed its ruling on the Commerce Clause issue.
After this court decided that the individual mandate of the PPACA does not violate the
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 4
Commerce Clause, Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011),
abrogated by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), the district
court granted summary judgment in favor of defendants on the Commerce Clause issue
(Count One). Plaintiffs filed a notice of appeal from the final judgment, and this court
consolidated the two appeals for resolution.
II. APPELLATE JURISDICTION
We have jurisdiction to review final orders and judgments of the district courts.
28 U.S.C. § 1291. Ordinarily, when a district court dismisses some claims but not
others, the district court’s decision is not final for purposes of appeal. In limited
circumstances, however, the district court may certify some claims for immediate appeal
under Rule 54(b), which provides in pertinent part:
When an action presents more than one claim for relief—whether as a
claim, counterclaim, crossclaim, or third-party claim—. . . the court may
direct entry of a final judgment as to one or more, but fewer than all,
claims . . . only if the court expressly determines that there is no just
reason for delay.
Proper certification under Rule 54(b) requires two steps: “the district court must
expressly direct the entry of final judgment as to one or more but fewer than” all of the
claims in the case and then the court must expressly find that there is no just reason to
delay an appeal. Gen. Acquisition, Inc. v. GenCorp., Inc., 23 F.3d 1022, 1027 (6th Cir.
1994). If Rule 54(b) certification is not properly entered, a final order does not exist
from which an appeal can be taken, and we lack jurisdiction. Lowery v. Fed. Express
Corp., 426 F.3d 817, 820 (6th Cir. 2005).
We review de novo the district court’s determination that multiple claims exist
and that one or more of them have been finally determined and may be severed from the
remaining claims for the purpose of immediate appeal. Gen. Acquisition, Inc., 23 F.3d
at 1027. We review for an abuse of discretion the district court’s finding that no just
reason exists to delay an appeal. Id.Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 5
A. Multiple claims
We recently discussed the application of Rule 54(b) in the context of
constitutional claims. Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490(6th Cir. 2012). Concerned with various constitutional challenges to an Ohio abortion
statute, we recognized that we had not previously addressed the application of Rule
54(b) to multiple constitutional claims regarding the same statute. Id. at 501. We
observed that the Fifth and Tenth Circuits had applied different tests in considering Rule
54(b) partial judgments in the context of constitutional claims. Id. (citing Jordan v.
Pugh, 425 F.3d 820, 827 (10th Cir. 2005); Samaad v. City of Dallas, 940 F.2d 925,
930–32 (5th Cir. 1992), abrogated on other grounds as recognized by Rosedale
Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 88–89 (5th Cir. 2011)).
While finding cases from the other circuits to be informative, we “decline[d] to adopt a
new test for analyzing multiple facial challenges to the same statute.” Id. Importantly,
we stated:
Statutory challenges will certainly all contain at least one common
operative fact—the passage of the challenged law. But the aggregate of
operative facts will not necessarily include just the challenged law’s
existence; rather, we must also consider the facts relating to the law’s
impact on similar or distinct constitutional rights.
Id. at 501. We distinguished our prior opinion in Lowery on the ground that there the
party brought only one claim under Rule 54(b) by raising “both a Title VII retaliation
claim and a state-law breach-of-contract claim, where the basis for the alleged breach
and the Title VII claim was the same retaliatory act by the employer.” Id. (citing
Lowery, 426 F.3d at 821). By contrast, we reasoned, a “single law that causes distinct
injuries to distinct constitutional rights is not so easily analogized to a single retaliatory
employment action causing one injury that can be vindicated through multiple channels
of relief.” Id. at 501–02 (footnote omitted). All four “potential claims” before us in
Planned Parenthood sought to disqualify the statute in question as unconstitutional and
all four claims “admittedly [sought] the same declaratory and injunctive relief.” Id. at
502. But we ultimately determined that the “aggregate of operative facts” giving rise to
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each constitutional right to be vindicated was “sufficiently separate to confer jurisdiction
despite the presence of some overlap.” Id.
Review of the counts alleged in Planned Parenthood reveals how the facts
attendant to each right were found to be sufficiently distinct. The first count alleged that
the statute criminalizing distribution of an abortion drug was unconstitutionally vague
and impacted the right of physicians to receive notice of what behavior is criminal before
they can be prosecuted. Id. The second count, which alleged that the statute violates a
woman’s right to bodily integrity in obtaining an abortion, bore “no relation to whether
the Act gives physicians constitutional notice of criminal conduct.” Id. We further
decided that counts three and four were the most similar because they alleged “violations
of the right not to have an undue burden imposed on the abortion decision,” but while
we would employ the same legal framework to decide both claims, we noted that the
injuries and the constitutional rights vindicated were distinct from counts one and two.
Id. “After reviewing the operative facts necessary to give rise to relief in each claim,”
we held “that their differences sufficiently outweigh what they have in common.
Because each count involves distinct facts relating to separate injuries, each count is a
separate claim for purposes of Rule 54(b).” Id. Further agreeing with the district court
that there was no just cause for delay, we held that we had appellate jurisdiction to
proceed to the merits. Id. at 502–03.
Application of Planned Parenthood to this case begins with recognition that the
passage of the individual mandate as part of the PPACA is simply one of the common
operative facts before us. We must “consider the facts relating to the law’s impact on
similar or distinct constitutional rights” and ask whether the alleged injuries and the
constitutional rights asserted in each count are distinct from the other counts such that
declaratory and injunctive relief might be imposed on separate counts to vindicate
separate rights. Id. at 501. Doing so leads us to conclude that each count of plaintiffs’
Second Amended Complaint alleges an injury to a constitutional right that is distinct
from the other counts.
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 7
Plaintiffs assert that the individual mandate violates their freedom of expressive
and intimate association (Count Two), their right to liberty (Count Three), and their right
to privacy in medical information (Count Four). While certain facts alleged support each
of these three claims, plaintiffs alleged other facts that are specifically targeted to the
rights of expressive and intimate association, the right to liberty, and the right to privacy
in medical information. The grant of declaratory or injunctive relief on one of these
counts would not vindicate the constitutional right asserted in the other counts.
Therefore, under Planned Parenthood, Counts Two through Four allege separate
constitutional claims, not merely separate legal theories aimed at one declaration of
unconstitutionality. We agree with the district court that multiple claims were presented
and hold that they provide a sufficient basis for the Rule 54(b) partial judgment.
B. No just reason for delay
The next consideration is whether the district court correctly determined that
there was “no just reason for delay” in permitting immediate appeal on Counts Two
through Four. The court was required to consider a nonexhaustive list of factors, such
as: (1) the relationship between the adjudicated and non-adjudicated claims; (2) the
possibility that the need for appellate review might become moot due to future
developments in the district court; (3) the possibility that the appellate court might be
required to hear the same issue twice; (4) the presence or absence of a claim or
counterclaim that might result in a set-off against the final judgment; and (5) other
miscellaneous factors, including “delay, economic and solvency considerations,
shortening the time of trial, frivolity of competing claims, expense, and the like.”
Corrosioneering, Inc. v. Thyssen Envtl. Sys., Inc., 807 F.2d 1279, 1283 (6th Cir. 1986).
The district court listed four of these five factors in its Rule 54(b) judgment,
recognizing that Rule 54(b) “is intended ‘to strike a balance between the undesireability
of more than one appeal in a single action and the need for making review available in
multiple-party or multiple-claim situations at a time that best serves the needs of the
litigants.’” Good v. Ohio Edison, 104 F.3d 93, 95 (6th Cir. 1997) (quoting Day v. NLO,
Inc., 3 F.3d 153, 155 (6th Cir. 1993)). The court observed that the constitutional claims
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 8
in the four counts were “entirely separate” and that the court’s decision on three of those
four counts was final for purposes of appeal. Accordingly, we conclude that the district
court sufficiently considered the first factor—the relationship between the adjudicated
and non-adjudicated claims—and the second factor—the possibility that the need for
appellate review might become moot by future developments in the district court. The
court also found that the nature of the constitutional challenges in Counts Two through
Four were independent from the Commerce Clause challenge remaining in Count One,
making it unlikely that the appellate court would be required to consider the same issue
twice. We are thus satisfied that the court considered the third factor.
The district court did not evaluate the fourth factor—the presence or absence of
a claim or counterclaim that might result in a set-off against the final judgment. Because
this factor has no application in the case, the court did not abuse its discretion in not
discussing this factor.
Finally, the court considered miscellaneous factors to determine that an
immediate appeal on three of the four counts was preferable to waiting for entry of final
judgment on all counts. At the time the court ruled, it did not know when the appellate
courts would decide the primary Commerce Clause challenge to the individual mandate.
Having dismissed three of the four claims, the court believed that plaintiffs were entitled
to an immediate appeal on the dismissal of those claims. After “balancing all the factors
to be considered in this case and the larger context of litigation surrounding the Act,” the
court found that there was no just reason to delay entry of final judgment on three
counts.
The district court’s reasoned analysis of the factors, although thin, offered more
than a simple recitation of the Rule 54(b) formula; therefore, the court’s decision is
entitled to substantial deference. See Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 61
(6th Cir. 1986). The court met its responsibility to consider the pertinent factors and did
not abuse its discretion in finding no just reason for delay of an appeal. See Planned
Parenthood Sw. Ohio Region, 696 F.3d at 500.
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 9
Because the Rule 54(b) certification was proper, we have jurisdiction over the
three claims to which it pertains. As it turned out, the Rule 54(b) partial judgment and
the final judgment bring before us all four counts for review in one consolidated appeal.
We turn to the merits of each claim.
III. STANDARDS OF REVIEW
We review de novo a district court order granting a Rule 12(b)(6) motion to
dismiss. Dudenhoefer v. Fifth Third Bancorp, 692 F.3d 410, 416 (6th Cir. 2012). In
evaluating the complaint for failure to state a claim, we must construe the allegations of
the complaint in the light most favorable to plaintiffs, accept all well-pled factual
allegations as true, and decide whether the complaint contains sufficient facts to state a
claim for relief that is plausible on its face. Id. Similarly, we review the grant of
summary judgment de novo. Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir.
2012). Summary judgment is appropriate if there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law. Id.IV. MERITS
A. Commerce Clause
In National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566,
2593, 2644–2650 (2012), the Supreme Court considered a challenge to the individual
mandate under the Commerce Clause, but ultimately held that Congress properly
exercised its taxing power to require individuals to purchase health insurance or pay a
tax—the shared responsibility payment. Id. at 2593–98. Because the Court has already
passed upon the constitutionality of the individual mandate and has affirmed its validity,
the district court did not err in granting summary judgment in favor of defendants on this
count.3
3
Pending before us in No. 11-3798 is a motion filed by plaintiffs, prior to the issuance of
National Federation of Independent Business, requesting that we enter judgment on the first count by
adopting Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011), abrogated by Nat’l Fed’n of
Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). Although plaintiffs disagreed with the reasoning and result
of Thomas More Law Ctr., plaintiffs acknowledged that it stated the law of the circuit at the time the
motion was made. Plaintiffs’ motion is denied in light of National Federation of Independent Business.
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 10
B. Freedom of expressive and intimate association
Plaintiffs alleged that PPACA infringes on USCA members’ freedom of intimate
and expressive association as guaranteed by the First and Fifth Amendments. Plaintiffs
allege that PPACA violates their freedom of intimate association because it interferes
with their doctor–patient relationships. They claim to possess a fundamental privacy
right to select doctors of their own choosing who use methods and approaches they
approve. Further, they argue, they have a right not to associate with doctors who
prescribe, and insurers that pay for, methods and approaches plaintiffs reject. They
contend that they should not have to pay twice—once for insured care they do not want
and again for the holistic and alternative care they prefer.
With regard to freedom of expressive association, the plaintiffs assert that
PPACA requires USCA members to obtain health insurance and subscribe to plans
“qualified” by the federal government whether or not they agree with the standards of
care or the kinds of medical services that the PPACA prescribes as “qualified” for
coverage. Plaintiffs claim to enjoy a fundamental First Amendment right to be free of
any forced association with private health insurers through government-compelled
membership in a particular “qualified” private plan. They argue that this compulsory
requirement of PPACA substantially burdens their expressive conduct because it
interferes with their right to criticize or boycott medical care funded by third-party
insurance companies. We examine each of these theories in turn.
1. Freedom of intimate association
Decisions to enter into and maintain certain intimate human relationships “must
be secured against undue intrusion by the State because of the role of such relationships
in safeguarding the individual freedom that is central to our constitutional scheme. In
this respect, freedom of association receives protection as a fundamental element of
personal liberty.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984). The types of
personal relationships that qualify for constitutional protection “attend the creation and
sustenance of a family” including marriage, childbirth, raising and educating children,
and cohabitation with relatives. Id. at 619; Johnson v. City of Cincinnati, 310 F.3d 484,
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 11
499 (6th Cir. 2002). In addition, courts have extended protection to personal friendships
and non-marital romantic relationships. Anderson v. City of LaVergne, 371 F.3d 879,
882 (6th Cir. 2004). These kinds of personal relationships are characterized by “such
attributes as relative smallness, a high degree of selectivity in decisions to begin and
maintain the affiliation, and seclusion from others in critical aspects of the relationship.”
Roberts, 468 U.S. at 620. Only similar relationships “with these sorts of qualities are
likely to reflect the considerations that have led to an understanding of freedom of
association as an intrinsic element of personal liberty.” Id. On the other hand, an
association with a large business enterprise lacks these qualities necessary for
constitutional protection. Id. And in between these two points “lies a broad range of
human relationships that may make greater or lesser claims to constitutional protection
from particular incursions by the State.” Id. To evaluate whether constitutional
protection extends to a particular association, the relationship’s objective characteristics
must be assessed to determine where the relationship lies “on the spectrum from the
most intimate to the most attenuated of personal attachments.” Id. Factors relevant to
this analysis include “size, purpose, policies, selectivity, and congeniality.” Id.We have described the right to intimate association as protecting “those
relationships . . . that presuppose deep attachments and commitments to the necessarily
few other individuals with whom one shares not only a special community of thoughts,
experiences, and beliefs but also distinctly personal aspects of one’s life.” Anderson,
371 F.3d at 881–82 (internal quotation marks omitted). We have also recognized that
medical patients typically do not share “deep attachments and commitments” with
physicians, nor do patients and physicians typically share “a special community of
thoughts, experiences, and beliefs.” See id.Plaintiffs contend that their relationships with their physicians satisfy certain
aspects of intimate association: relative smallness (a relationship between two
individuals), a high degree of selectivity (the choice of a doctor is significant and
selective), and seclusion from others in critical aspects (doctor-patient confidentiality
protects the disclosure of private health information). Citing Andrews v. Ballard,
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498 F. Supp. 1038, 1047 (S.D. Tex. 1980), plaintiffs suggest that the right to intimate
association extends to their doctor–patient relationships. In Andrews, the district court
addressed a claim that a patient’s decision to obtain acupuncture treatment is a
constitutional right encompassed within the right of privacy, and that Texas regulations
limiting the practice of acupuncture to licensed physicians imposed a significant burden
on the patient’s decision and were not narrowly drawn to achieve a compelling state
interest. Id.Andrews is inapposite. There the court was concerned with an alleged
Fourteenth Amendment right to privacy, not the First Amendment right to intimate
association. Id. at 1045. The case is also distinguishable because the statute at issue
imposed a direct limitation on the ability of physicians to practice, whereas the
individual mandate does not impose any similar limitations on the rights of physicians.
At most, Andrews is authority from a lower court in another circuit that may be
persuasive. It does not compel us to hold that plaintiffs’ doctor–patient relationships are
protected by the freedom of intimate association.
Even if the factors of smallness, selectivity, and seclusion of others exist to some
degree in plaintiffs’ relationships with their doctors, those factors are not sufficient to
establish a right to intimate association that should receive heightened scrutiny. See
Flaskamp v. Dearborn Pub. Sch., 385 F.3d 935, 942 (6th Cir. 2004). The Ninth Circuit
has concluded that the relationship between a psychoanalyst and a patient was not the
type of bond that qualified for intimate association, see e.g. Nat’l Ass’n for Advancement
of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000),
because these kinds of ties have not “played a critical role in the culture and traditions
of the Nation by cultivating and transmitting shared ideals and beliefs,” nor have they
acted “as critical buffers between the individual and the power of the State.” Roberts,
468 U.S. at 618–19. Moreover, “most federal courts have held that a patient does not
have a constitutional right to obtain a particular type of treatment or to obtain treatment
from a particular provider if the government has reasonably prohibited that type of
treatment or provider.” Mitchell v. Clayton, 995 F.3d 772, 775 (7th Cir. 1993) (citing
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 13
cases); Carnohan v. United States, 616 F.2d 1120, 1122 (6th Cir. 1980) (“Constitutional
rights of privacy and personal liberty do not give individuals the right to obtain laetrile
free of the lawful exercise of governmental police power.”). In addition, relationships
with large business enterprises like health insurance companies do not qualify as
intimate associations warranting constitutional protection. Roberts, 468 U.S. at 620.
We conclude that the individual plaintiffs, Thompson and Grapek, failed to show
that they possess a right of intimate association with physicians that is infringed by the
individual mandate. USCA’s claim also fails as it does not explain how its size, purpose,
policies, selectivity, and congeniality establish that it has a protected right to intimate
association. See id. at 620–21 (holding that Jaycees chapters lack the distinctive
characteristics that might afford constitutional protection).
Plaintiffs’ claim that PPACA violates their freedom of intimate association fails
for another reason. Nothing in the individual mandate precludes plaintiffs from
establishing relationships with the medical professionals of their choice, nor does the
individual mandate require them to associate with particular medical professionals. The
individual mandate simply requires most Americans to maintain a minimum level of
health insurance coverage or make the shared responsibility payment. Nat’l Fed’n of
Indep. Bus., 132 S. Ct. at 2580, 2595–96. The district court properly dismissed this
claim.
2. Freedom of expressive association
The right of expressive association is the First Amendment right to associate for
the purpose of speaking. Rumsfeld v. Forum for Academic and Inst. Rights, Inc.,
547 U.S. 47, 68 (2006); Miller v. City of Cincinnati, 622 F.3d 524, 537 (6th Cir. 2010).
The right protects a group’s membership decisions and shields against laws that make
group membership less attractive without directly interfering in an organization’s
composition. Miller, 622 F.3d at 537. The freedom to speak “could not be vigorously
protected from interference by the State unless a correlative freedom to engage in group
effort toward those ends were not also guaranteed.” Roberts, 468 U.S. at 622. “Freedom
of association . . . plainly presupposes a freedom not to associate.” Id. at 623. But the
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“right to associate for expressive purposes is not . . . absolute.” Id. Infringements on the
right “may be justified by regulations adopted to serve compelling state interests,
unrelated to suppression of ideas, that cannot be achieved through means significantly
less restrictive of associational freedoms.” Id.To evaluate an expressive association claim, the court uses a three-step process.
Miller, 622 F.3d at 538. The first element asks whether a group is entitled to protection;
the second asks whether the government action in question significantly burdens the
group’s expression (affording deference to the group’s view of what would impair its
expression); and the third requires weighing the government’s interest in the restriction
against plaintiff’s right of expressive association. Id. While USCA appears to be a
group entitled to protection, plaintiffs do not satisfy step two.
Plaintiffs have failed to show how the individual mandate significantly burdens
the group’s expression. The individual mandate does not impair plaintiffs’ ability to
engage in expressive conduct—they are free to voice their disapproval of PPACA or
health insurance in general, and “nothing about the statute affects the composition of the
group by making group membership less desirable.” See Rumsfeld, 547 U.S. at 69–70.
Nor does PPACA force USCA to admit insurance companies as members. See Boy
Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000); Roberts, 468 U.S. at 623. Plaintiffs are
not required to obtain health insurance and associate with health insurers at all; they may
choose to pay the shared responsibility payment instead. See Nat’l Fed’n of Indep. Bus.,
132 S. Ct. at 2597 (“[I]f someone chooses to pay rather than obtain health insurance,
they have fully complied with the law”). While Congress passed PPACA “to increase
the number of Americans covered by health insurance and decrease the cost of health
care,” id. at 2580, failure to obtain health insurance does not, as alleged, turn Thompson
and Grapek into outlaws. Rather, payment of “the shared responsibility payment merely
imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.”
Id. Because plaintiffs’ right of expressive association is not impaired by the individual
mandate, this claim is without merit and the district court properly dismissed it.
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C. Right to liberty
Plaintiffs next allege that PPACA violates certain fundamental rights
encompassed within the term “liberty” in the Due Process Clause of the Fifth
Amendment. They alleged the following rights: to be let alone, including the right to
make choices not to receive medical treatment of a particular kind or at all; not to pay
for unwanted treatments or pay for insurance that covers unwanted treatments; and not
to divulge medical confidences to a private insurer or its agents in order to obtain health
insurance.
Plaintiffs aver that competent adults possess a fundamental right to refuse
unwanted medical care, see Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278
(1990), as well as a fundamental right to medical autonomy, see Planned Parenthood v.
Casey, 505 U.S. 833 (1992). They argue that the constitutionally protected liberty right
to reject unwanted medical care encompasses their decision not to pay for unwanted
medical care. The individual mandate places a coercive burden on the exercise of the
right to refuse unwanted medical care, plaintiffs contend, because they must either
(1) pay for unwanted health insurance that covers unwanted medical services, or (2) pay
the tax. They claim that the financial penalty burdens the exercise of a fundamental right
and is therefore coercive and presumptively unconstitutional.
The individual mandate does not implicate the fundamental liberty right of
Thompson or Grapek to refuse unwanted medical care. As we previously stated, the
individual mandate requires either the purchase of health insurance or the payment of
a shared responsibility payment. See Nat’l Fed’n of Indep. Bus., 132 S. Ct. at 2597.
Plaintiffs remain free to choose their medical providers and the medical treatments they
will or will not accept.
Further, “no court has invalidated these kinds of mandates under the Due Process
Clause or any other liberty-based guarantee of the Constitution.” Thomas More Law
Ctr., 651 F.3d at 565 (Sutton, J., concurring in part), abrogated on other grounds in
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566. The Supreme Court long ago
abandoned the protection of economic rights through substantive due process.
Nos. 11-3327/3798 U.S. Citizens Ass’n, et al. v. Sebelius, et al. Page 16
See Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (“The doctrine that prevailed in
Lochner . . .–that due process authorizes courts to hold laws unconstitutional when they
believe the legislature has acted unwisely–has long since been discarded.”) An alleged
fundamental right must be carefully formulated, and it must be “objectively, deeply
rooted in this Nation’s history and tradition, and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were sacrificed.”
Washington v. Glucksberg, 521 U.S. 702, 720–22 (1997).
Regardless of whether plaintiffs’ claim is cast as a freedom to remain uninsured
or a freedom to refuse to pay for unwanted medical care, the right asserted cannot be
characterized as “fundamental” so as to receive heightened protection under the Due
Process Clause. See Fla. ex rel. Atty. Gen. v. U.S. Dep’t of Health and Human Servs.,
648 F.3d 1235, 1362–63 (11th Cir. 2011) (Marcus, J., concurring in part and dissenting
in part), aff’d in part and rev’d in part on other grounds, Nat’l Fed’n of Indep. Bus. v.
Sebelius, 132 S. Ct. 2566 (2012). USCA has not attempted to make a showing, nor
could it, that it possesses a fundamental liberty right to refuse unwanted medical care.
Plaintiffs’ right to liberty claim is also without merit, and the district court properly
dismissed it.
D. Right to privacy
Finally, in the last count of the Second Amended Complaint, plaintiffs alleged
that they enjoy a constitutionally protected interest in the confidentiality of their medical
information. They claimed that the federal government cannot constitutionally compel
disclosure of USCA members’ private medical information to a private insurer because
the government’s interest in disclosure fails to outweigh plaintiffs’ constitutionally
protected interest in privacy. They also alleged that PPACA compels them to enter
contracts against their will and forces them to disclose confidential medical information
to insurance companies and, by virtue of the government’s right of access to that
information, to the government itself. Plaintiffs alleged that this right arises from the
First, Third, Fourth, Fifth and Ninth Amendments.
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Substantive due process protects an individual’s interest in avoiding the
disclosure of personal matters, such as private health information. Whalen v. Roe,
429 U.S. 589, 599 (1977); Bailey v. City of Port Huron, 507 F.3d 364, 367 (6th Cir.
2007). But not all statutes that require the disclosure of personal information are
unconstitutional. In Whalen, the Supreme Court rejected a constitutional challenge to
a state statute that required physicians and pharmacists to use a triplicate form to
document each prescription written and filled for Schedule II drugs and then to supply
a copy of each form to the State. Id. at 593. Upon receipt of the forms, state employees
entered the data into computers for the purpose of investigating any cases of over-
dispensing of the drugs. Id. at 594–95. The statute expressly prohibited public
disclosure of patient identities, but this did not allay the patients’ fears that their private
health information would be disclosed and they would be stigmatized as “drug addicts.”
Id. at 595.
The Supreme Court upheld the constitutionality of the statute as “the product of
an orderly and rational legislative decision” to exercise the State’s broad police power.
Id. at 597–98. The Court characterized the possibility of unwarranted disclosure of
patient information as “remote” and insufficient to invalidate the entire program. Id. at
601–02. Importantly, the Court stated that public disclosures of private health
information are not
meaningfully distinguishable from a host of other unpleasant invasions
of privacy that are associated with many facets of health care.
Unquestionably, some individuals’ concern for their own privacy may
lead them to avoid or to postpone needed medical attention.
Nevertheless, disclosures of private medical information to doctors, to
hospital personnel, to insurance companies, and to public health agencies
are often an essential part of modern medical practice even when the
disclosure may reflect unfavorably on the character of the patient.
Requiring such disclosures to representatives of the State having
responsibility for the health of the community, does not automatically
amount to an impermissible invasion of privacy.
Id. at 602 (footnote omitted).
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The individual mandate does not actually compel plaintiffs to disclose personal
medical information to insurance companies. But even if it did, the Supreme Court’s
reasoning in Whalen dispenses with plaintiffs’ position that the individual mandate is
unconstitutional because it may require the disclosure of private health information to
insurance companies. Plaintiffs can avoid any privacy concern altogether by simply
foregoing insurance and complying with the individual mandate by making the shared
responsibility payment. See Nat’l Fed’n of Indep. Bus., 132 S. Ct. at 2597. Finally, any
injury plaintiffs may suffer by disclosing their private health information to insurance
companies is highly speculative at this point, see Wilson v. Collins, 517 F.3d 421, 430
(6th Cir. 2008), and plaintiffs did not allege any specific facts to support such injury.
Plaintiffs’ right to privacy claim is without merit and was properly dismissed.
V. CONCLUSION
As a result of the proper entry of a partial judgment under Rule 54(b), we have
jurisdiction to consider the merits of the constitutional claims raised in Counts Two
through Four, along with the merits of the Commerce Clause challenge that comes to us
by way of final judgment. The Supreme Court’s opinion in National Federation of
Independent Business v. Sebelius controls the outcome on Count One, and the remaining
constitutional claims were correctly dismissed for failure to state a claim. Accordingly,
we affirm the grant of summary judgment in favor of defendants on Count One and we
affirm the Rule 12(b)(6) dismissal on the remaining claims.