Equal Protection and Individual Mandate

We've been hearing all week about whether the Individual Mandate (that everyone must have health insurance) of the Affordable Care Act is constitutional. The Obama admin. has been arguing that the Commerce Clause of the Constitution gives them cover.

Ari Ezra Waldman, writing for Towleroad, reports that Scott Schoettes of Lambda Legal, thinks the gov't should also be looking at another part of the Constitution, the Equal Protection Clause.

People with HIV, especially if poor or a racial minority, are much more likely to not have health insurance. They are usually denied coverage because HIV is a pre-existing condition. Treatment for it is also frighteningly expensive.

So here is a class of people being discriminated against. The only way to end that discrimination is to require insurance companies to take people without regard to pre-existing conditions. And the only way to do that (other than universal health care) is the Individual Mandate. Thus the case is about equal protection.