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Illustration by Krieg Barrie

Non-buyers beware

Healthcare | Mandates in current healthcare bills to buy insurance-or face jail time-are raising prospect of civil disobedience and constitutional challenges

Issue: "Homegrown terror," Dec. 5, 2009

David DeGerolamo is mad, and this past April the 53-year-old North Carolinian decided he wasn't going to take it anymore. Since then the Raleigh resident has scaled back on his small drafting and consulting business and poured himself into his new role as an "unpaid fighter for our country."

The source of DeGerolamo's ire: the federal government. He said Washington, D.C., needs to stop. Stop the bailouts that he blames Republicans for starting. Stop the healthcare overhaul that Democrats are pushing.

When the White House earlier this year set up a "facts are stubborn things" website with an email account asking people to send in any healthcare argument that "seems fishy," DeGerolamo turned himself in for his opposition to the ongoing overhaul efforts. He typed his name in bold letters, font-size 72:

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"In the tradition of John Hancock, I'm sending my name so you can read it," he emailed.

Soon DeGerolamo, freshly minted activist, may be turning himself in to federal authorities again for an act that this time could carry a hefty fine and even jail time.

Current healthcare bills include a government order to carry health insurance or face penalties. This unprecedented new individual mandate is a regulation too far for DeGerolamo and scores of others nationwide. In acts of civil disobedience, they are pledging to cancel their insurance and turn themselves in once the mandate becomes law.

"This is not about healthcare," explains DeGerolamo. "This is about power. This is about government control. If the government starts forcing you to buy something, then they are buying your freedom, and that means we are slaves."

Partly to entice support from the insurance industry with the promise of millions of new customers, lawmakers have attached the mandates to their bills. For noncompliance, current proposals levy fines that are either a percentage of income, the cost of an average premium, or capped at a set amount such as the $750 fine. (Insurers are pushing for the higher penalties so millions won't decide that paying the fine is cheaper than buying insurance.)

"Penalties are appropriate for people who try to free ride the system and force others to pay for their health insurance," President Barack Obama recently told ABC News. "Now, what those penalties are, I think they have to be high enough that people don't game the system."

Obama skirted the issue of jail time. But incarceration and larger fines are possible for those who refuse to pay these penalties, according to nonpartisan congressional analysts. In a handwritten note to Sen. John Ensign, R-Nev., Thomas Barthold, chief of staff for the Joint Committee on Taxation, wrote that violators could be charged with a misdemeanor by the Internal Revenue Service and face up to a year in jail or a $25,000 penalty. Those penalties were amended out of one Senate healthcare version.

But, this month, in a formal letter to House Republicans, Barthold wrote that, depending on the level of noncompliance, willful evasion of the House mandate would be con­sidered tax evasion and could lead to a felony charge punishable by a $250,000 fine and up to five years in prison.

The fines will be used to chip away at the $1 trillion cost for reform. The Congressional Budget Office predicts that the fines alone could add as much as $20 billion to federal coffers. "You look inside that bill and you find handcuffs," said Rep. Peter Roskam, R-Ill. "Why is it you need to criminalize people to coax them into a plan? We ought not stand for it."

Those who will not stand for it extend beyond North Carolina activists like DeGerolamo. In the Minneapolis suburbs, Erik Peterson has made an individual choice not to carry health insurance during the economic downturn. He said the decision has saved him about $3,000 this year. While healthy, the 45-year-old Peterson understands he is taking a calculated risk in order to budget more money to pay for food and his mortgage.

He said he would reject government insurance subsidies because he doesn't want to get addicted to them. "Not buying health insurance is not going to hurt anybody else in the system," he said. "I'm not one of those who runs to the ER."

But now he is worried that under the proposed system he would no longer have the freedom to make that choice. "You are not going to stick me in jail because I didn't pay my health insurance," he said. "That's not America."

If the insurance mandate becomes law, Ken Klukowski, a legal expert with the American Civil Rights Union, expects legal challenges to its constitutionality. The Founding Fathers did not intend for the federal government to drop such a regulatory hammer on its private citizens, believes Klukowski.

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