Is Healthcare a Right?: A Reply to Jeff Hammond

The following is my reply to Jeff Hammond’s latest blog post, available here.  


There is a lot in Jeff’s latest blog post that I appreciate.  Something readers can learn about Jeff from his most recent submission: Jeff is a gifted teacher.  He does a fine job explaining an important concept that bears on our discussion about healthcare ethics: the difference between positive and negative rights. Jeff does this in a way that draws on his own expertise without speaking down to readers who are not legal scholars. In future discussions with my own students I could easily see myself turning to Jeff’s comments to help my students better understand the philosophical issues that inform contemporary debates about social justice and healthcare.  I’m always grateful for examples like this, even if the conclusions the author reaches do not match my own.

Furthermore, I think Jeff has done well to  draw attention to a real area of philosophical difference between us. Jeff indicates that I explicitly claim healthcare as a positive right.  Jeff denies that healthcare is a positive right.  To put this in terms often employed in contemporary healthcare debates, Jeff believes that healthcare provision is a privilege, a good that one may purchase freely, but not a good to which individuals are entitled.  Government should not be, in his words, in the “give-me-goodies” business. Government should be in the “keeping-out-of-my-business” business. In this respect, I think Jeff is absolutely correct when he identifies the critical difference in our positions: when I say that I prefer the NHS to our system of healthcare, one can take that to mean that I prefer a healthcare system that presumes access to healthcare to be a positive right.  Jeff does not see healthcare as a positive right, so our different postures reflect this important philosophical difference.

So is there a way forward for our conversation? I think so. Let me offer a few comments that extend on Jeff’s illuminating discussion of positive and negative rights:

(1) I think Jeff is essentially correct when he describe the United States Constitution as a document that embraces a robust vision of negative rights but does not offer a substantive account of positive rights.  However, to end our conversation of positive and negative rights there is to tell only half the story.  In her 2014 book Looking For Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive RightsEmily Zackin offers a helpful corrective to the argument that the concept of positive rights is alien to the American experience. As Zackin argues:

Throughout the nineteenth and twentieth centuries and across the United States, activists, interest groups, and social movements championed positive rights, and built support for their inclusion in state constitutions. As a result of these political campaigns, state constitutions have long mandated active government intervention in social and economic life, and have delineated a wide array of situations in which government is not only authorized, but actually obligated to intervene. (2-3)


Positive rights are not foreign to the American rights tradition. Says Zackin, “State constitutions contain a plethora of positive-rights provisions that cover a wide range of topics. In fact, these constitutional provisions closely resemble the positive rights in constitutions all over the world” (11). These provisions point us to a more complex portrait of rights and American tradition than the one Jeff is offering, one that is more amenable to positive rights claims than conservatives want to admit.

(2) To elaborate on the previous point it will help to return once again to education as an example.  By Jeff’s logic we should be just as willing to say that no child has a “right” to an education.  If positive rights are foreign to “the best vision of America,” as Jeff argues, then why not treat state-funded public education as just another example of government getting into the “give-me-goodies” business? Zackin points to the common school movement as perhaps the best example of the development of a positive rights tradition among the states, devoting an entire chapter to this claim:

Chapter 5, a study of constitutional education rights, focuses on the common school movement, which originated in the Jacksonian period and continued through the Reconstruction era. The common school movement successfully established the states’ constitutional duty to provide education, and its leaders argued that government had a moral duty to expand opportunities for children whose parents could not otherwise afford to educate them, and insisted that state legislatures should be legally obligated to fulfill it. This movement was quite clear that the value of constitutional rights lay in their potential to promote policy changes by forcing legislatures to pass the kinds of redistributive policies they generally avoided. This chapter provides what may be the strongest evidence for an American positive rights tradition that exists primarily at the state level. Throughout American history and even in the face of federal involvement, state and local governments have been responsible for establishing and maintaining public school systems. Furthermore, every state constitution currently includes a provision about public education, and many state supreme courts have explicitly declared these provisions to be educational rights.” (16)

I gather that Jeff himself is amenable to the existence of state-funded public schools; he has already said as much (Note: a detailed summary of the state-level constitutional provisions mandating the creation of public schools may be found here). My question for Jeff: do you see public education as just another example of government overreach, or do you believe that all children have a “right” to an education such that the state plays a legitimate role in ensuring the existence of educational opportunities for all children?

(3) In the end, our disagreement about whether or not access to healthcare is a “right” or a “privilege” may be moot.  To this point we have not discussed at any length the existence in the United States of programs like Medicare and Medicaid. I don’t think that Jeff is claiming that the existence of Medicare/Medicaid itself constitutes a violation of constitutional principle (correct me if I’m wrong, Jeff). Thus, even if healthcare is not a “right” in Jeff’s eyes, I gather that Jeff is not arguing for the elimination of programs like this that provide some level of healthcare to the poor and elderly.  If Medicaid is a program that passes constitutional muster, then liberals like me would be fine with simply expanding Medicaid to cover as many people as possible, setting aside the philosophical question of whether or not access to healthcare is a “right.” The pragmatic goal of ensuring access to healthcare takes priority over the task of working out the semantics behind this goal.

(4)  Jeff’s discussion of the “give-me-goodies” government makes it sound like he envisions liberals like me as advocating an Oprah-style government that is dispensing out Lexus sport cars to every citizen in the name of promoting equal distribution (“You get a sports car! And you get a sports car! And you get a sports car!”).


This caricature doesn’t reflect my own thinking, nor does it reflect the position of John Rawls, the philosopher that Jeff points to. Jeff and I already agree that it is just to ensure that children have access to education.  We agree that it is in our collective interest that the state redistribute resources so that this happens.  We also agree that Lexus sports cars are not public goods, that using the power of the state to ensure access to a Lexus the way that we ensure access to an education would be inappropriate.  Our difference here, I think, is that I see healthcare as a good that belongs in the same category as education. Jeff sees healthcare is something that is closer to a Lexus sports car. I don’t see healthcare as a “goody.” I believe it is in our collective interest that every person have access to at least a basic level of healthcare in the same sense that I believe it is in our collective interest that every person have access to a basic level of education.

(5) Jeff understands my vision of the world to be one that values equality “for its own sake.”  I must confess that I have no idea what it means to value equality for its own sake. Jeff observes (correctly) that I have been influenced by the work of the American philosopher John Rawls.  Rawls doesn’t value equality for its own sake either.  In fact, Rawlsian liberalism declare certain kinds of inequality to be just–namely inequalities that are organized so as to provide the greatest benefit to the least well off members of society. Related to healthcare, the liberal perspective does not deem it unjust that doctors receive substantially more compensation than restaurant employees. In a society in which every member has access to healthcare, all of us benefit from a system of inequality in which doctors are well compensated for their labor. We would all be worse off in a system that creates disincentives for people to do the hard work necessary to become well-trained, excellent doctors. Some of us also need more healthcare than others.  A woman born with Crohn’s Disease will need a level of healthcare during her life that a healthy person like me will not. In short, inequality itself is not unjust, at least from the liberal perspective that I defend. Some people will have more, others less.  Some people will also need more.  Inequalities are permissible. Sometimes inequality is itself desirable.

That’s my first crack at responding to Jeff’s lucid discussion of rights.  I’ll close this post with a few shorter comments in response to the last half of Jeff’s last post:

(1) I asked Jeff if he would be okay with maintaining the ACA requirement that health insurance providers provide insurance access without regard to pre-existing conditions.  Jeff replied that if we do this then we should stop calling the product “insurance” and should call it instead health care “coverage.”  My followup question for Jeff: Okay, so would you be okay with maintaining the ACA requirement and relabeling the product a “health care coverage” plan, not insurance?  Attaching a new label to the product doesn’t really address the important question of whether or not you support the mandate.

(2) I agree with Jeff that we probably need to adopt a wait-and-see approach to the current system.  The politics of healthcare reform are always messier than the principled discussions of liberals and conservatives.  Regardless, I am still interested in hearing from Jeff about his idealized alternative.  That is, if he could fashion an ideal system of healthcare provision, what would that system look like?  I’m inviting Jeff to set aside the difficult question of what is possible and to help us envision what is desirable from his vantage point.

(3) I was surprised at how mild Jeff was in his criticism of the NHS.  I agree with Jeff that implementing an NHS-style healthcare system in the United States is not feasible.  I’d also argue that it is not desirable given the circumstances we are in. The obstacles that would attend moving from a healthcare system consisting primarily of private contractors to one in which doctors become employees of the state would be substantial, and the collateral damage of such a move would be grave.  Of course the NHS offers only one example of how to socialize a healthcare system.  There are plenty of other industrial democracies that maintain a system consisting primarily of private healthcare providers while socializing or regulating the provisioning system that compensates them for the care they provide.  I really appreciate Jeff’s appeal to T.R. Reid’s book The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care. Reid’s book is a great introduction to how other countries are addressing the healthcare needs of their citizens in ways that are more cost-effective and fairer than in the United States.


(4) Jeff may well be correct that U.S. citizens are less amenable to the intrusions of the state into healthcare than their British counterparts. This is why conversations of this sort are so important.  Minds need to change.  As for the “bureaucratic queues” of the NHS that worry Jeff so much, anecdotal appeals can be misleading.  Jeff speculates that his 7 week wait to have non-emergency gall bladder surgery would have been much longer in the United Kingdom.  It’s hard to render this speculation concrete, but in 2013 the Commonwealth Fund conducted an extensive survey of healthcare consumers from 11 nations, including the United States and the United Kingdom.  Among the findings of the survey:

  • The United States spent roughly $8508 per capita on healthcare during the calendar year. The United Kingdom spent roughly $3405 per capita during the same time.
  • 37% of Americans surveyed indicated that they had experienced a”cost-related access problem.” In the United Kingdom, 4% indicated this experience.
  • 23% of Americans surveyed indicated that they had a “serious problem paying or were unable to pay medical bills in the past year.” In the UK: 1%.
  • 48% of Americans surveyed indicated that they were able to schedule a same-day or next day appointment with a doctor.  In the UK: 52% indicated this.
  • 26% of Americans surveyed indicated that they had to wait 6 or more days for an appointment. In the UK: 16% indicated this.
  • What about waiting times for specialist appointment? 76% of Americans surveyed indicated that they waited less than 4 weeks.  In the UK: 80% indicated that they waited less than 4 weeks.  Alternatively, 6% of Americans surveyed indicated that they had to wait two or more months.  In the UK, 7% of survey respondents indicated that they had to wait this long.

This data suggests that appeals to long wait times in the NHS can be misleading.  Even Jeff’s experience in the American system illustrates that waiting for non-urgent care is a reality that American patients experience. We should be careful not to read too much into a single survey, just as we should be careful to avoid reading too much into individual stories of a healthcare consumer’s bad experience in the American healthcare system or in the NHS. Having said this, the survey provides some evidence against the overwrought angst of conservatives fearful of the specter of socialized medicine.




“Right, Rights, Everywhere There Are Rights”: Jeff Hammond on Healthcare and the NHS

The following is Jeff Hammond’s latest contribution to our ongoing discussion of healthcare ethics.  This post is part 2 of Jeff’s reply to my earlier blog posts, available here and here. The first part of this post replies to my post, “Conservatives are ‘Collectivists’ Too.”


Let’s see if I can tackle some of the points Vic makes in the last one-third of this essay.

Rights, Rights, Everywhere There Are Rights

The first thing I want to emphasize comes not from Vic’s penultimate essay, but his last one.  Vic explicitly claims healthcare as a positive right.  He enthusiastically endorses Great Britain’s system of socialized healthcare, as delivered through the National Health Service, as the type of taxation, payment, and delivery system that he would like to see implemented in the United States.  More on the NHS later in this essay, but I have to make my most important point about it first.   I forthrightly deny that healthcare is a right in the sense that I perceive Vic to be using the word: as a fundamental claim for a particular benefit to be provided by the government.

To be succinct, I do not believe that positive rights, including a positive right to healthcare from cradle to grave, tracks with the best vision of America, from its founding to today.  Our founders believed that rights were venerable.  Rights were granted by God and recognized (yet not granted) in the Constitution.  That rights are innate and merely recognized in our central charter should cause the government charged with protecting those rights to be circumspect and respectful of them.  But more importantly, it should cause that same government to be humble in its role, recognizing that it (the government) did not create anything.  Its role is only to recognize and protect.

The framers of our Constitution (and here I’m including the state ratifying conventions, the first Congress that framed the Bill of Rights, and the states that ratified the Bill of Rights), erected a charter of negative rights – things that the government could not do to the citizen.  [Let’s just grant, without explanation, that many provisions of the United States Constitution have been incorporated against the States.]  Congress cannot abridge your right to freely speak, or mess with your right to practice your religion as you see fit, or interfere with your right to stand up and petition the government for a redress of (your) grievances, among other things.

That all of these rights, and others, have been interpreted and limited by the Supreme Court does not vitiate the basic point: as stated in the text of the Constitution, the government does not give you anything that you can put in your pocket.  One of the central points of our Constitution is about what the government can’t do to you, the citizenBy extension, another essence of our Constitution is that it is not about what the government must grant to you.  Therefore, government is in the keeping-out-of-my-business business.  It is not in the give-me-goodies business.

I do not think that I am out of turn by stating that Vic’s vision of the world in which equality is a fundamental norm that is prized for its own sake.  That is inline with Vic’s worldview that adheres to the teachings of John Rawls.  My worldview is different:  government exists, not to guarantee equality for its own sake, but rather to guarantee equality of opportunity so that the citizen, who is ultimately sovereign, may choose according to his reason and will what is best for him.

So, if government is in the keeping-out-of-my-business business, then I should have the freedom to buy health insurance or not buy it.  I should reap the rewards of having health insurance when I need to use it.  I should reap the consequences of not having health insurance when I need to use it but don’t have it.

At this point, let me anticipate one counterargument.  What about EMTALA, you say?  To that I answer: the right to be treated in the emergency room for an “emergency medical condition” is one that is limited by statute.  It does not extend from the cradle to the grave like (presumably) a constitutional right to healthcare would.

What About the Affordable Care Act?

 Now, let’s pivot to the heart of the last one-third of Vic’s essay in which he touts the virtues of the Affordable Care Act.  Vic asked me for the “conservative” response to (1) the individual mandate; (2) the ACA prohibition on refusing to write individual insurance policies based on the applicant’s pre-existing conditions; and (3) income subsidies so that people can buy health insurance.  Let me answer these seratim.

(1)  The Individual Mandate – there isn’t a truly conservative version of this mandate for all the reasons I’ve previously stated.  It offends my most deep-seated conservative inclinations for the government to tell me that I must buy a particular product.  This mandate can’t be made more palatable by putting some conservative veneer on it.  And, yes, I know that Vic will harken back to his first post in this debate in which he refers to the Heritage Foundation scholar who first ginned up the Individual Mandate lo, these many years ago.  The mandate’s patrimony makes it neither right nor conservative.

(2)  The ban on insurers refusing to write individual health insurance policies based on the applicant’s pre-existing conditions.  This is easy.  If this is to remain in whatever is left of the ACA, we should call the “product” that is the focus of the ACA not health “insurance” but health care “coverage” because the product is not bona fide insurance.  By definition, insurers make contracting decisions on applicants based on the applicant’s prior history.  Don’t be surprised if your auto insurer drops you after your third fender-bender.  Don’t be surprised if your home insurance drops you after your fifth claim in two years.  And don’t be surprised if you can’t find an another auto or home insurer to pick up your account based on your pre-existing condition (your claims history)!  That’s just how insurance works!  If insurance is to be something we’ve always known as insurance, then the insurer will have to have some leeway in picking among the risks that it wants to insure.  Otherwise, it’s not really insurance.

(3)  Tax subsidies – I’m sort of ambivalent about this.  It’s certainly not very conservative to tax the rich(er) to redistribute to the poor(er), but it happens with such frequency that I’ve become numb to this forced redistribution.  To the extent that I have to pay for a lot of things that I wouldn’t necessarily prefer just goes to show that Congress has taken a very broad view of its taxing and spending power.  Do I hate the fact that people not as well off as I am are getting subsidies from the government to buy health insurance?  I do not.  Do I love this fact?  I do not.  I do wish, however,  the government wouldn’t tax me for anything that falls outside the any of the essential functions of government.

My thoughts on the constituent parts of the ACA are academic at this point because I would be shocked if the law were repealed in its entirety.  I would love to see that done, but I have no confidence that will happen.  Instead, I think that congressional Republicans’ calls to “repeal and replace” the ACA will ultimately amount to a targeted repeal and replacement.  President Obama focused on shepherding the ACA through Congress in his first term because (a) rationally, he did not know that he would be elected to a second term; and (b) passing the bill in 2010 gave the country, and more importantly, the Executive Branch bureaucracy almost seven years to write tens of thousands of pages of regulations implementing the statute.  The statute itself, as passed by Congress and signed by President Obama, is anywhere between 900 and 2000 pages, depending on how the text is printed.  The implementing regulations, when printed, pass the statute’s page count by orders of magnitude.  It will be terribly hard to undo what has already been done.  I think that was by design.  In other words, I think that the ACA’s proponents wanted to so completely reconstruct the American healthcare system through the ACA and its implementing regulations that the task of deconstructing this new system would not be worth the trouble.

Hence, as I stated above, I believe that the ACA will be partially repealed and replaced.  It’s obvious that President Trump has quite a bit of energy to act.  (Whatever you might think of the soundness of the President’s actions is a different story.)  It’s instructive that the President and the congressional Republicans have not acted yet with respect to the ACA.  I think that’s because they don’t know yet what they are going to do.

We’ll see what happens.  Senator Rand Paul of Kentucky and Congressman Mark Sanford of South Carolina (yes, that Mark Sanford) have proposed a plan that would repeal the ACA and in its stead replace it with tax credits and a modified version of the pre-existing condition coverage mandate. Nevertheless, I maintain my argument.  Once Congress gets serious about “making the sausage,” Rand Paul or anyone else’s plan will very likely look nothing like what he originally proposed.  That’s just what happens when crafting important legislation.

Now, Onto the National Health Service

I have time for just a few thoughts about Great Britain’s National Health Service (NHS) before I wrap up this essay (actually before my self-imposed 10 A.M. deadline of getting my essay to Vic.  LOL).  Anyway, here goes:

In Great Britain, healthcare is a “claim” right against the government from cradle to grave.  The vehicle that was chosen to deliver this lifelong care is the National Health Service.  Britain chose the NHS model of socialized healthcare in the aftermath of World War II, when the country was in desperate straights.  The British people were more or less united in wanting a tangible representation of their social solidarity, and the NHS was such a vehicle.  The NHS has become so entrenched in British culture and political consciousness that attempts to “repeal and replace” it have uniformity failed, as Vic has noted.

T.R. Reid, a correspondent for the Washington Post, wrote a fascinating book entitled The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care.  In this book, Reid surveys the health systems of several Western-style, modern democracies, including France, Germany, Japan, and Great Britain.  The point in telling you about this book is not to summarize each country’s model of health payment or delivery but rather to point out that all of these countries, including Great Britain, have a much more cohesive society that truly wanted, and still wants, health reform.  In several of these countries, including Great Britain, this health reform takes the form of government-led, top-down approach to the citizen’s most important health decisions.  Each of these countries, including Great Britain, has a society that is willing to get behind the sacrifices of whatever stripe that are needed in order to make a nationalized health system work.

My point is this: America does not have such a cohesive society.  Bernie Sanders’ health reform ideas mirror the NHS the most of any candidate in the 2016 election.  Let’s say that Bernie runs again in 2020.  He would first have to win the Democratic nomination (by peeling off more moderate Democratic voters), then he would have to convince a significant number of Republican voters to vote for him to give him the type of popular mandate that would allow him to force through Congress a revolutionary health plan mirroring, in part, the NHS.  Plus, Congress would have to flip to Democratic control.  I don’t see it happening soon.

Our nation is too divided.  There are enough people like me who do not want to be stuck in bureaucratic queues to receive our healthcare, that I believe popular opinion would effectively kill any attempt to implement a NHS-style plan in America.

Even though there is a lot that can be said about the NHS, let me say one last thing for right now.  In his last essay, Vic mention NHS’s queues (waiting lists) as an example of the type of “moderate scarcity” that he supports (or is comfortable with).  The existence of these queues, of all the features of the NHS, would kill its ascendency in the United States.  Let me give you a personal example.  I mentioned in a previous essay that I was hospitalized in 2016.  I had stable gallbladder disease.  My pain was severe enough at the onset of an episode that I had to take an ambulance ride to the hospital and spend about 36 hours there.  That’s where the bills totaling over $14,000 came from.  Even though my pain was severe, my case was stable, so I didn’t need surgery right away.  I ended up having surgery, on an outpatient basis, about seven weeks after my initial hospitalization.  Could I have waited longer than seven weeks if I needed to?  Probably so, in my layman’s opinion.  As far as I know, my health was not compromised by waiting, and I could have waited a little longer.  Did I want to wait any longer?  Absolutely not!  My gallbladder disease was significantly affecting the way I went about my day.  [It was a gastrointestinal disease.  Just think about how my day was affected, including, but not limited to, what I had to eat. :)]

Who knows how long the planners at NHS would have made me wait?  I’m inclined to think I would have had to wait longer than seven weeks for my surgery.  But look at all the tumblers of the lock, as it were, that fell into place that resulted in my getting the care I needed, when I needed it: (A) I went to the emergency room and got great care there, including, importantly pain medicine.  (B) I was admitted to the hospital, and I received excellent care from the hospital-based doctors, nurses, and technicians.  I received the medicines and imaging studies I needed.  (C) I was referred back to my family doctor.  Of the problems noted on my discharge summary, he honed in on the most important, and most likely diagnosis – gallbladder disease.  (D) He (or his staff) called over to the surgeon’s office and scheduled an appointment for me to see the surgeon.  (E) The surgeon saw me immediately, counseled me on my disease, told me the number of like surgeries he had done (thousands!!), and scheduled surgery.  (F)  Surgery was done, and I went home the same day.

I have no doubt that at least part of the reason I received such excellent care was because I have excellent health insurance.  Again I wonder whether I would have received such excellent care if I lived in Birmingham, England rather than south of Birmingham, Alabama.  I doubt it.

That’s about all I have time for right now.  I’m up against the clock.  More on the NHS in a subsequent essay.

Conservatives are “Collectivists” Too: A Reply to Jeff Hammond

This is my reply to Jeff Hammond’s recent blog post, part of our ongoing discussion of healthcare ethics. Enjoy!

After reading Jeff’s latest posts, I feel some need to address his concerns about the problematic rhetoric he detected in my recent comments. Jeff indicated that my last blog post had him feeling that I was “spreading” him, collegiate debate style.  This is not my intent.  “Spreading” is a rhetorical strategy in which one side aims to overwhelm the other with so many arguments that the other side cannot begin to address everything. I am not a fan of the strategy; it impedes serious discussion.  While my last few posts have been lengthy, I’ve tried to avoid developing large numbers of independent, unrelated arguments. It is true that I have been posting more frequently than Jeff, and this may well be contributing to Jeff’s perception.  To remedy this my plan going forward is to avoid posting more than a single post between Jeff’s replies.  I’m hopeful that this will remedy Jeff’s feeling.

Jeff also took exception to my use of the word “incoherent” to describe his position, deeming this uncharitable, perhaps even uncivil. I regret that Jeff took my description this way, and I apologize to him for how this came across.  It was not my intent to disparage him.  The word seemed appropriate to me to describe an argument that embraces internal contradictions (i.e. claims that do not “cohere” on their face).  Jeff would prefer that I simply say that I think his position is wrong. To be honest, I’m still trying to figure out what Jeff believes about forced transactions, so I’m not yet in a place where I’m entirely comfortable saying that he is “wrong,” at least on this topic.  However, my aim here is not to inflame but to discuss ideas.  Maybe a better way to describe Jeff’s argument is that it is “fraught with tension,” or “wrestling with a commitment to competing values in an imperfect world.”  This is certainly more charitable, and it also is much closer to the language that Jeff himself uses to describe our problem: we are wrestling with policy questions that admit no easy answers. In short, Jeff, I’ll avoid the offending term going forward and look forward to the ongoing dialogue.


Having said this, I’m not convinced that Jeff’s last blog post does his argument any favors. Our discussion at present has focused primarily on the moral premises behind what Jeff calls “forced transactions.” In principle Jeff claims to be opposed to forced transactions. However, as I noted in my previous post, this principled objection to forced transactions breaks down for Jeff (Note: Jeff is not alone here.  This breakdown is common for many conservative critics of Obamacare). I want to summarize what I hear Jeff saying with respect to each of the forced transactions that have figured in this conversation. I’ll list each transaction and then offer my own summary of Jeff’s argument based on what he has said so far, inviting Jeff to clarify if I am misunderstanding him:

Forced Transactions that Jeff Supports

(1) Universal Police/Fire Protection and Military DefenseThis is what government is for, and there is a longstanding consensus among us that giving up some of our liberty for the greater protection of liberty (e.g. protecting our private property rights) is justifiable. If we didn’t do this then we would have no government at all, and we are okay with having government.

(2) Public EducationThis is different than (1), above. We could still have a government without state-subsidized public schools. However, none of us would want to live in the community that would result from us turning our backs on compulsory public education.  We’re okay with tax-funded public schools because it is a good thing for all of us that kids are educated with the skills and habits that are essential for them to become good citizens. And even if we have tax-funded public schools, our community also creates ample space for citizens to pursue private alternatives.

(3) EMTALAIt would be indecent for us to let people die on the streets. Forcing hospitals to provide healthcare that they realize they will not be fully compensated for is preferable to allowing hospitals to deny care. 

While Jeff supports all of these forced transactions, he objects to the ACA individual insurance mandate:

Forced Transaction that Jeff Does Not Support

The ACA Individual MandateHealth insurance is different than all of the forced transactions above. The ACA mandates that I purchase a product that benefits me. Yes, you might argue that my refusal to purchase insurance burdens the larger public, but what of it? I’m not a consequentialist; I don’t evaluate policies based on whether the consequences are good for society as a whole. I evaluate them on the basis of whether or not they conserve individual liberty. The individual mandate does not do this.  It infringes on my liberty by forcing me to buy a product without my consent.

This is what I hear Jeff saying in his last post (and once again, Jeff is not alone.  He is echoing a standard trope in conservative circles).  He summarizes my argument on forced transactions as saying something like this: “If for these (i.e.. police/fire/military protection, education), then why not for that?”  Jeff is basically correct, but it will help clarify my critique of Jeff’s argument if we restate the question in the opposite way: “If not for this (i.e. the individual mandate), then why for these (i.e. police/fire protection, education)?”  Jeff’s objection to the ACA mandate is simply a reassertion of the moral claim that forced transactions are unjust because they infringe on individual liberty. But if this is the basis for objecting to the mandate, then on what grounds can a liberty-loving conservative affirm the justness of the other forced transactions that Jeff clearly supports? If liberty is fundamental to Jeff’s assessment of forced transactions, it’s unclear why this commitment to liberty recedes to the background when we are talking about police and fire protection, education, and EMTALA.

Let me clarify this point. It is important. With respect to police/fire protection and military defense, Jeff’s response to my argument–the reason why he is okay violating individual liberty  with respect to these services–can  be boiled down to this: these forced transactions are permissible because most of us agree that they are. Jeff argues that forcing people to pay for these services are the “venerable, longstanding bases” of the “American social contract.” I agree with him.  However, I find it surprising that Jeff finds a mere appeal to our widely shared consensus sufficient grounds for him to part company with his own deeply held convictions about individual liberty. If liberty is so important, and if forced transactions violate my liberty, why not embrace this wholesale?  Why not argue for the elimination of states altogether? Why not simply allow the market to work its magic, with individuals freely contracting with defense firms competing with one another to serve their clients? If Jeff were to make this argument, he would not be alone. Anarcho libertarians like Murray Rothbard have offered forceful, unflagging arguments against the very forced transactions that Jeff himself has affirmed in this discussion.  I’m trying to understand why Jeff doesn’t find anarcho libertarianism persuasive. Jeff asserts that without state-sponsored military defense there would be no government. Yes.  That’s true.  So what of it?  Why do you think that would be a bad thing?


On education, I agree with Jeff that education is different than police/fire protection and military defense.  For one, the consensus about public education is not as venerable as is the consensus about military defense. The American public education system emerged only in the 19th century due to the efforts of educational reformers like Horace Mann. Prior to this education was informally organized, and access to education in many American communities was premised either on a family’s ability to pay a tutor or provide home-based instruction for their children, or on whether or not a community had a local benefactor who could fund charity-based alternatives for the poor. Jeff is also correct that it is technically possible for a government to operate without guaranteeing access to primary schools for all children.  But Jeff is still okay with forcing individuals to pay for public schools.  He argues that “it is a good thing to have a minimally competent, generally educated citizenry and workforce.” In this respect, Jeff is echoing the argument of 19th century education reformers like Mann who were convinced that the haphazard patchwork of 18th century American education was falling short of achieving this goal. Jeff also notes that ensuring universal access to education enables children to “better participate in our system of self-government.” Thus, while education is different than police/fire protection and military defense, once again Jeff is affirming a forced transaction that raises a difficult question: how do you claim to uphold individual liberty while at the same time mandating that some people pay for the education of other people’s children? As with military defense there is an anarcho-libertarian alternative to this forced transaction, defended by Thomas Woods in his recent book Education Without the State.  

In short, Jeff’s argument is fraught with tension.  His last blog post actually heightens this tension.  Consider the range of criticisms that he levels at my argument:

  • Jeff implies that when I appeal to the public effects of an individual’s refusal to purchase insurance as justification for the mandate that I am being a consequentialist. Jeff insists that he is not a consequentialist. But if this is so then what are we to make of Jeff’s own argument in support of EMTALA? What is Jeff appealing to in his considered advocacy of coercing healthcare providers to provide emergency care if not the (indecent) consequences of simply allowing hospitals to deny care?
  • Jeff accuses me of being a collectivist who has a hard time understanding or acceding to an individual’s prerogative to use his property as he wants.  Jeff asserts that he is not a collectivist. But if this is so, then what are we to make of Jeff’s own argument in support of tax-funded police, fire protection, and military defense? What is Jeff’s argument in support of forced taxation for these services if not an argument that allows the state to supersede my prerogative to use my property as I want?
  • Jeff argues that liberals like me rely on vague notions of the common good as grounds for justifying infringements of individual liberty.  Not Jeff.  He is all about defending liberty.  But if this is so, then what are we to make of Jeff’s own argument in support of public education in which he appeals to the creation of “a minimally competent, generally educated citizenry and workforce” as grounds for forcing taxpayers to fund schools that their children don’t attend? What is this argument if not one that assumes some notion of a common good as grounds for justifying a forced transaction?

Fraught with tension indeed.  Jeff, like many conservatives, wants to frame our healthcare debate as if it is a debate between liberty-loving people like him and bleeding heart collectivists like me.  It’s not difficult to see why such a frame appeals to conservatives. But here is the point, the reason why discussing police and fire protection, military defense,  and public education is relevant to a debate about healthcare: these examples illustrate that the common frame that conservatives employ in healthcare debates–the frame that Jeff returns to as if by default at the conclusion of his last post–doesn’t accurately reflect our identities in this debate. This is not a debate between liberty-loving conservatives and collectivists liberals. Conservatives are collectivists too, willing to appeal to consequences and to pay homage to the common good when this reflects their moral intuitions about justice. All of us, liberal and conservative, are collectivist/consequentialist/advocates-for-the-common-good about some things. The question is whether or not these impulses, this concern for the effects of public policy on the larger community, this desire to protect this thing we call the common good, should inform the conclusions that we reach about healthcare policy too.  

Jeff suggested that I “bedazzle” readers by focusing more of my time doing “theological ethics” for them. I found that request humorous  when I first read it.  After reading Jeff’s post my first instinct was to simply lift the entirety of Jeff’s paragraph on public education as an example of what it looks like for a Christian to appeal to the common good when supporting coercive public policy. But that would distract us from the primary topic of this discussion: healthcare. Elshtain does not speak directly to the topic of healthcare and the common good in her book, so instead I’ll take steps to respond to Jeff’s desire for a more substantive discussion of a theology of the common good by quoting at length from the January 18, 2017 letter from the US Congress of Catholic Bishops to Congress, a “Letter to Congress on the Affordable Care Act.”The letter was written by the Most Reverend Frank J. Dewane on behalf of the bishops. It states in an eloquent way what it looks like for Christians to appeal to the ideal of the common good as a basis for moral conclusions about healthcare policy. Appeals of this sort are not idiosyncratic, nor are they outside the mainstream of the Christian theological tradition, as Jeff well knows:

As you begin the 115th Congress, I urge you to work in a bipartisan fashion to protect vulnerable Americans and preserve important gains in health care coverage and access.  The Catholic bishops of the United States have consistently advocated for access to decent health care that safeguards and affirms human life and dignity from conception until natural death.  In a 2009 letter to Congress, my predecessor as Chairman of the USCCB Committee on Domestic Justice and Human Development, Bishop William Murphy, wrote:  “All people need and should have access to comprehensive, quality health care that they can afford, and it should not depend on their stage of life, where or whether they or their parents work, how much they earn, where they live, or where they were born.  The Bishops’ Conference believes health care reform should be truly universal and it should be genuinely affordable.” 

Every person is made in the image of God and possesses inherent dignity.  A just community strives to see and address the needs of those who struggle on its margins, and each segment of society is called to build toward a common good that creates and maintains conditions aimed at true human flourishing.  In our country’s policies toward that end, we must not see health care as a luxury, but as a necessary building block to help individuals and families thrive and contribute to the good of the community and the nation.

In his encyclical, Pacem in Terris, Saint John XXIII wrote:  “We must speak of man’s rights.  Man has the right to live.  He has the right to bodily integrity and to the means necessary for the proper development of life, particularly food, clothing, shelter, medical care, rest, and, finally, the necessary social services.” (no. 11).  Like his predecessors, Pope Francis continues to echo this teaching, recently saying, “Health, indeed, is not a consumer good, but a universal right which means that access to healthcare services cannot be a privilege” (Address to “Doctors with Africa-CUAMM,” May 7, 2016)


I suspect that there is a fair bit here that Jeff will have some sympathy for: the appeal to the inherent dignity of every person created in the image of God and the desire for communities that promote human flourishing.  This letter well reflects the heart of Catholic social teaching. There is a longstanding commitment  in the Catholic tradition to this ideal that we call “the common good,” reflected in foundational encyclicals of contemporary Catholic social doctrine like Rerum Novarum (1891), Pacem in Terris (1963), and Laudato si’ (2015). Jeff may see this facet of Catholic social teaching as a prime example of what he accuses liberals like me of offering up, a “vague notion of social solidarity and the common good.” But isn’t one of the purposes of discussions like this to take these vague notions and to discern how we embody them in public policy?  That’s what the Catholic bishops are doing in their letter.  They are suggesting that in a public debate about the future of healthcare in America that access to medical care should be viewed as a right, not a privilege. They are arguing that access to comprehensive healthcare is a natural extension of a commitment to human dignity and human flourishing. They are saying that ensuring access to healthcare to all members of the community is in keeping with the Christian commitment to the common good. What do you think, Jeff? Are you not bedazzled?


I’ll conclude by pointing to one final tension in Jeff’s latest post and then point to one thing I’m hoping Jeff will do in a future post.  The genesis of this online debate was a Facebook thread that I started shortly after the November 2016 election.  Distraught over the results of the election, I realized that the future demanded that I reassess my own thinking about healthcare reform.  With a Trump presidency looming, it was clear that the ACA was in jeopardy. Jeff is a conservative who is quite well versed on the topic of healthcare policy, certainly more than me.  I reached out to Jeff and told him I was eager to learn what a conservative like him envisions as an ideal future for the American healthcare system. I’m still seeking an answer to this question. If the ACA is a disaster in conservatives’ eyes, what are they hoping for?  What would a healthcare system that embodies the commitments of conservative intellectuals like Jeff look like? I want to listen and learn. I’m open to considering conservative alternatives to Obamacare.

Jeff has not yet outlined for us the contours of what he hopes for, though there are places where his comments suggest some hints of what he actually wants.  Jeff’s last post, however, muddied the waters for me.  Remember, Jeff’s first contribution to this discussion was his well-stated summary and defense of EMTALA.  In that post, and once again in his recent post, Jeff indicates that he is not okay with people dying in the streets.  This is why he supports EMTALA.  But if this is so, I can’t begin to make sense of the conclusion of Jeff’s latest blog post, where Jeff discusses the logical implications of the position he embraces in a way that lead him to precisely the opposite conclusion:

[M]y first inclination is toward the freedom of the individual, because ultimately the individual  is the sovereign chooser.  In large part, what makes human life worthwhile is the ability to direct it myself.  If I don’t want it (the health insurance), I don’t want it.  I shouldn’t be made to buy it.  But, at the same time, I shouldn’t get the benefits of having bought it, if, in fact, I never buy it.  I should be stuck with the consequences of my decision.  I should, in essence, be allowed to die in the streets.  It was my decision.

Perhaps Jeff is still trying to work out in his own mind how to reconcile a commitment to liberty with the indecency he so forcefully argued against in his initial foray into this discussion.  This is another one of those “fraught-with-tension” moments that needs to be resolved.  To be clear, I don’t think that one can argue that we should not let people die on the streets while saying at the same time that we should.  In the end, these tensions raise the question that I keep wanting Jeff to answer in our debate about the ACA: what is your alternative?


Jeff Hammond on Conservatism and Healthcare

The following is Jeff’s latest contribution to our ongoing discussion of healthcare ethics. Jeff is replying to my earlier post, available here. Thanks  to Jeff for continuing the conversation!–Vic


Vic’s latest blog post raises so many points that I find it impossible to deal with all of them in one responsive post.  After reading Vic’s essay, I felt like I did after a particularly rough debate round in college, after being “spread” by the opposing team’s arguments rattled off in machine gun-like fashion.  (Vic was on the debate team with me at Harding University.  He knows to what I refer.)  So, for brevity’s sake, I’ll deal with some of them in this post and others in a subsequent post.

But first, a word of mild chastisement: if I were in Vic’s shoes, I would not have used the word “incoherent” to describe my interlocutor’s position.  In my last post, I believe I was honest about the problems associated with my position of favoring insurance (or some other method of payment) for emergency encounters but my ambivalence, even reticence, about a mandate to purchase insurance to pay for non-emergent health issues.  It’s a big problem that does not admit an easy answer, if one is to be admitted at all.  That said, I’m OK with being called “wrong,” as Vic did in one of his previous posts. I am not fine with being called incoherent.  I think that description is uncharitable at least, and uncivil at most, and does not respect the fact that I came to rest on a position that does not admit an easy answer.  But maybe “incoherent” is exactly what Vic intended.

So, let me restate the heart of my position thusly: hospitals have an obligation, found in a federal statute, to screen and treat emergent patients.  This obligation is ,in essence a quid pro quo which states that because the hospital gets a steady stream of Medicare patients then it has to take emergent patients of all stripes. Those emergent patients incur financial obligations – an obligation found in private law (contract law or its cousin, the law of restitution) to hospitals and doctors when they are screened and treated.  Whether willingly (having signed a financial obligation form) or unwillingly (the hospital has treated them while unconscious or otherwise lacking capacity), the patient has incurred a legal obligation.  Can we agree that it is morally wrong for one to welch on his financial obligations?  If so, then is it really such a large step to establish a concomitant obligation, found in law, for that person to have the means to take care of his financial obligations incurred while in the emergency department?

Further, I have consistently stated that the continuum between non-emergent and emergent diseases is the most trenchant criticism of my position.  That is, because many non-emergent diseases can become emergent ones, then the impetus to make people procure insurance (or another way to pay) only for emergent care loses some of its oomph.  Why not make everyone get insurance now, so the argument goes, so that their high blood pressure can be treated before they have a stroke?  I hope that my answer can be found in what is most fundamental to my political philosophy: the freedom of the individual.  More on that later.

But, regardless of Vic’s intent, I do agree with him that the battle, as it were, has been joined.  We are now in a bona fide debate.  Our discussion has already caused me to think hard(er) about my positions.  I’m sure our debate will prompt me to sharpen my deep-seated ideas on health policy and ethics.  I hope the same is true for Vic.

Now to the substance of Vic’s last essay. Vic’s initial argument may be summarized something like: “If for these, then why not for that?,” with the “these” being the compelled payment of taxes for public education, universal police and fire protection, and a common defense, and the “that” being the individual insurance mandate.  In other words, if the government can (uncontroversially) tax me to fund the Armed Forces, for example, why can’t it force me to pay for something that does me an enormous amount of good, like health insurance?

Well, I can think of a few reasons why compelled taxes for education, fire and police protection, and the armed services (the “three foundational examples”) might be (at least) slightly different than the individual mandate:

  1. The three foundational examples, especially numbers 2 and 3 (fire and police protection and a common defense) are the venerable, longstanding bases of the western, and more particularly, American social contract.  Said differently, it’s pretty uncontroversial that we would submit ourselves to government if government is going to protect me from a robber or fight a (hopefully just) war on my behalf.  I’ll even go so far as to say that police and fire protection and a common defense are the sine qua non of government.  Government can’t exist if peaceful citizens are robbed or murdered with no check on the criminals’ worst impulses.  A state’s citizens will find somewhere else to live if those same citizens believe that they won’t be safe.  Otherwise, those same citizens will resort to self-help in all situations in which the police would normally intervene.  Likewise, government can’t exist if it puts up no defense to an outside existential threat.

This seems to be the very heart of Lockean social contract theory: we give up a little bit of our freedom for the cover of protection of all of our property provided by the fire and police departments and the armed forces.  There are two keys: (1) these government entities protect private property.  I wonder, then, if there is something inherently moral about mixing your ingenuity and the sweat of your brow to attain something of your own – something that’s worthy of protection (that is, property)?  I think so.  To be a free human being means to own and use property for your own ends.  And there are times that property needs collective protection that can’t be properly done by self-help. (2) You give up something precious – some of your property and freedom – to protect the greater amount of your freedom and your property.

This point can be wrapped up thusly: we’re OK with compulsory taxes for fire and police protection and a common defense because we’re OK with living under a government.  And part and parcel of what it means to live under a government is to have fire and police protection and a common defense.

  1. Education is a little bit different than fire and police protection and the common defense.  Could government exist without property taxes in service of compulsory public education?  I think so.  Would any of want to live in such a state?  Probably not.  I think we’re OK taxes funding compulsory public education because there is more or less of a consensus that it’s a good thing to have a minimally competent, generally educated citizenry and workforce.  We all can better participate in our system of self-government if we are all at least minimally educated.  But, we can’t have a government if there is no fire and police protection or common defense and the taxes that fund those essential services.

And by the way, you should ask yourself why private alternatives to compulsory education have flourished, but private alternatives to fire and police and the armed forces have not, all things considered.  There are tens of thousands, perhaps more, private schools in the United States.  There are hundreds of thousands, if not millions, of homeschooled children.  (Vic would know the precise number.)  Why have these students and parents opted out of public education, even though the parents pay property taxes to fund it?  It’s because these they have found a better alternative (for them).  That private and home-based education has thrived and private police, fire, and armed forces have not, proves, I think, that citizens still depend on their governments to protect their property and themselves but would otherwise be just fine with paying for their children’s private education even though they pay for it again through taxation.  Just how many private, subscription-based fire departments are there?  Not tens of thousands or more, I would suspect.  And, the fact that private military contractors exist says nothing of substance at all about the fact the vast majority of our national protection is provided by the Army, Navy, Air Force, Marines, and Coast Guard.  Think about it this way: is Blackwater going to deploy our next aircraft carrier?  Quite obviously not.

The point is this: the mere fact that private alternatives exist for Vic’s three foundational examples prove exactly nothing.  And he knows it.  All it means is that he has chosen two of the most important functions of government as his examples of things that can be, but rarely are, done privately.  Again, Vic has proven precisely nothing.  So, I say to Vic: so what?

  1. Health insurance is different, I think, than the three foundational examples.  Dr. Roger Pilon, the scholar from the Cato Institute who spoke at Faulkner Law last week, nicely summarized support for the individual mandate, and by extension, for EMTALA this way: we’re uneasy with people dying in the streets.  [I did not place quotation marks around this statement as I cannot quote Dr. Pilon with precision.  Nevertheless, I want to attribute the thought to him.]  Notice that Dr. Pilon is OK with people dying, whether in the streets or in their homes.  I’m not OK with people dying in the streets, and thus they should be treated for their emergent conditions, as per EMTALA.  I am OK with people dying in their homes or elsewhere for serious, yet non-emergent conditions, if they haven’t chosen ahead of time to provide for payment for their healthcare.

The individual mandate requires that I procure health insurance or pay a tax.  In other words, I am forced to engage in a transaction, one way or the other.  But, this forced transaction is unlike the taxes I pay for basic governmental services, discussed above.  By engaging in a forced transaction for heath insurance, I am compelled to buy something that primarily benefits me.  You will be quick to stop me.  You will say something like: your health insurance does not solely benefit you.  That you are able to procure the healthcare that you need benefits the body politic.  If you are able to get the healthcare that you need, because you have a way to pay for it, you do not shift the costs associated with your unhealthiness to everyone else.  That burden-shifting could come in the form of costs associated with absenteeism from work or school, lost productivity at work, increased costs in the emergency department, among other factors.

But here’s the thing: I’m not a consequentialist.  I don’t look at a proposal and deem it “good” or “bad” based on the consequences that it produces.  Rather, I look at a government proposal to see how much of my freedom it conserves.  See?  I’m a conservative.  I’m not a “radically-minded (I.e. consistent) libertarian,” to use Vic’s words.

For collectivists like Vic it is hard to understand, much less accede to, the individual’s prerogative to use his property the way that he wants to.  Collectivists have vague notions of social solidarity and the common good that require forcing people to do something that they do not want to do with their own money. They believe that ultimately, the government is sovereign. The government knows best. And the government can make the individual do something that he otherwise does not want to do in order to benefit him, because he does not know what is best for him; others do.  That the government makes these decisions for him (that he should buy health insurance) demonstrates the government’s benign beneficence.  On the other hand, my first inclination is toward the freedom of the individual, because ultimately the individual   is the sovereign chooser.  In large part, what makes human life worthwhile is the ability to direct it myself.  If I don’t want it (the health insurance), I don’t want it.  I shouldn’t be made to buy it.  But, at the same time, I shouldn’t get the benefits of having bought it, if, in fact, I never buy it.  I should be stuck with the consequences of my decision.  I should, in essence, be allowed to die in the streets.  It was my decision.

By the way, Vic cited Jean Elshtain’s critically acclaimed book as the basis for asserting that the common good should motivate government initiatives like the individual mandate.  He says that he had neither the time nor the space to expand on Elshtain’s ideas that form a (the?) basis of his argument.  I would think, though, that as a theological ethicist, Vic would want to bedazzle me and his other readers with some, you know, theological ethics.  Let’s hear about the common good, Vic!

As I promised, more will come later, when I take up the last one-third of Vic’s essay and his extended apology for Great Britain’s National Health Service.  I’m licking my chops for that one.  Until then…

Healthcare UK Style: Can You Have Your Cake and Eat It Too?


In my last blog post I concluded by noting my decided preference for the United Kingdom’s National Health Service (NHS) over the system we have in the United States. In today’s post I want to clarify these feelings.  Many Americans dismiss UK-style healthcare as a prime example of what it looks like to live in an overbearing nanny state.  I find these criticisms misguided and ill-informed.  That is not to say that healthcare in the UK is ideal or unproblematic.  As with the US system, the NHS illustrates the point of my earlier blog posts about US healthcare reform: you cannot have your cake and eat it too.

Let’s start with the premise upon which the UK healthcare system is founded: access to healthcare is a right for every citizen of the UK.  Every citizen has access to healthcare from birth to death, and most citizens will never receive an itemized bill for the healthcare that they receive.  Individuals will never be faced with the threat of bankruptcy due to catastrophic illness.  If you are a low-income family who has a child suffering from leukemia, your child will be able to receive chemotherapy treatment, and the hospital will never send you a bill demanding payment.  With few exceptions you will never pay a dime out-of-pocket. In this respect the UK treats its healthcare system much the way that the United States treats our police and fire protection services.

Sounds too good to be true, right?  Well, as every British citizen knows the healthcare that you receive in the UK is not free. There is no utopia here.  Just as in the United States, the United Kingdom needs to pay for the healthcare it promises every citizen.  The NHS is funded through general taxation.  Every year British citizens will pay a portion of their earned income via a National Insurance deduction, automatically withheld from their paycheck by the state.  It is this facet of UK-style healthcare that troubles many Americans, who are almost genetically predisposed to react allergically to anything resembling a tax-funded entitlement. However, as a whole the UK public is quite supportive of the NHS. In 2015, 60% of UK citizens indicated that they were “very or quite satisfied” with the NHS according to the most recent report by The King’s Fund. While there is much discussion of healthcare reform in the UK, there is bipartisan consensus that healthcare remains a fundamental right of all UK citizens, and there is virtually no politician Left or Right pushing for a fully-privatized healthcare system.

All of this said, most of my readers are Americans, and as a whole Americans are woefully ignorant of the practical costs of National Insurance and how these costs compare to the costs of our own system.  I am going to make these costs more transparent and concrete, as follows. Stick with me here.  The illustration will allow for easier comparison. How much do you actually pay for healthcare in the UK? I want you to imagine for the moment that you are a British citizen as described below:

(1) You are a 40-year old worker with a spouse and two children who earns £4000/month, or £48,000/year (note: at the conclusion of this scenario I’ll convert final costs to dollars for my American readers). You are the only person employed in your home.

(2) The UK establishes a “lower limit” of your income that will not be taxed for National Insurance purposes. For the 2016-2017 calendar year this amount is £5,824 (Note: the current tax rates that I’m describing in this scenario are available at the UK government website, here). In addition, the UK establishes what is called a “Primary Threshold” above this lower limit, which for the 2016 calendar year is £8060.  The tax rate for income between the lower limit and primary threshold for most workers (including you) is also 0%.

(3) For National Insurance tax purposes, the UK established a an “Upper Earning Limit,” currently £43,000. All income between the primary threshold (£8060) and this upper earning limit (£43,000) is taxed at the same rate.  For the 2016 year, this rate is 12%. This portion of your income will thus require that you pay an annual tax of £4193.

(4) Above this upper earning limit, your remaining income is taxed at a 2% rate. Thus, for your remaining £5000 of annual income you will pay an additional £100 in taxes.

Here is the bottom line: if you are a worker in the UK who earns £48,000/year, you will be required to pay £4293 of your income as a National Insurance tax. Divided over 12 months, your monthly cost for healthcare will be £358/month. Since most of my readers are American, let’s convert that to American dollars.  At the current exchange rate (today, £1=$1.25), a person who earns $60,197 will pay $5384 as a national insurance tax, or $449/month.  UK-style healthcare is not free!

But now I want to try sell you on the merits of this system before drawing attention to some of the problems that worry critics.  Consider that in the UK your $449/month buys you what I described at the beginning of this post. And what does your $449/month buy you? You can visit a doctor, go to a hospital, receive chemotherapy, visit the emergency room when you need to, and you will never receive a bill from the provider. You will never need to negotiate with an insurance company that refuses to pay for a treatment that your doctor says you need. You do not have to worry that you will be denied access to care that you need because of your inability to pay. That’s what your $449/month gets you in the UK.


Now compare this to what we have in the United States. Here things are more variable. Some people receive health coverage through their employer, and different employers have different healthcare plans. Some individuals purchase health insurance on the market.  Some are covered by tax-subsidized Medicare or Medicaid.  For the purposes of comparison, let’s have the same family above with the individual now employed at Abilene Christian University. I want to use my present employer for this exercise principally because I am intimately familiar with our plan, and also because our plan is typical of where a growing percentage of employer-based healthcare plans in the United States are going. Imagine the same person as in the scenario above, a family of 4 with an annual earned income of $60,000/year (i.e. £48,000/year). Here is a breakdown of healthcare costs for this family (Note: the details I’m describing here are publicly available on the ACU website, here):

(1) Your monthly premium for health coverage through ACU will be $425/month, assuming that you and your spouse have had your annual physical and are eligible for the wellness discount. If you have not, your monthly premium will be $485/month. But let’s assume for the moment that you are health conscious and eager to reduce your monthly premiums.  Your family gets their annual checkups, so your monthly premium is $425/month. We’ll set aside for the moment the optional dental and visual plans that are available to you.

(2) For your $425/month premium , you buy yourself a healthcare plan with a $4000/year deductible for an individual in your family, and a maximum deductible of $8000/year for your entire family.  This means that on top of your monthly premium you are also responsible for the first $4000/8000 of your healthcare expenses before your insurance company will begin picking up the tab. This assumes that you are only using healthcare providers that are within a network of providers that your insurance company has contracted with.  If you want the services of a provider from outside this network the individual and family deductibles will rise to $8000 and $16,000/year, respectively.

(3) For your $425/month premium you also buy yourself yearly preventative checkup from your doctor for which you will pay nothing out of pocket.

(4) Finally, your employer (ACU) agrees to contribute $1500/year into a “Health Reimbursement Account,”(HRA) that accrues from year to year.  This money is available to you to cover your deductible expenses for the year.  If you spend less than $1500 for the calendar year then this money carries over to the next calendar year.  ACU will keep contributing to this account up to the point where the money accrued matches the annual deductible. Thus, if you have 4-5 years of minimal healthcare expenses and experience a sudden, expensive health emergency, the money you’ve accrued in your HRA might end up covering the entirety of your deductible for that year.

(5) Finally, at the conclusion of the calendar year you’ll get a brand new deductible the next year that you will need to satisfy once again before your insurance will begin covering healthcare expenses.

Your $425/month premium is not the only monthly healthcare expense that you will pay.  In addition, your salary will be subject to a Medicare tax that funds the Medicare/Medicaid system. Your employee portion of the Medicare tax is currently 1.45%, and all of your income is subject to this tax.  Thus, on top of your $425/month premium you will also pay a $873/year Medicare tax.  Averaged out over 12 months, you’ll pay $73/month for this tax.  The bottom line: At Abilene Christian University, the same family above will pay $498/month for health premiums and tax.  

It’s not difficult to see the mismatch.  From a healthcare consumer’s perspective, a $449/month tax that gives me access to doctors, hospitals, cancer treatment, and emergency care while never subjecting me to the sticker shock of an itemized medical bill seems much better than a $425/month premium paid to an insurance company coupled to a tax paid to the state, all of which simply buys me a relatively high deductibles that I will need to pay again at the start of the next calendar year. My yearly out-of-pocket cost is less in the UK than in the US, and I get more for my money.


Given the choice, I prefer the NHS. However, critics are right to observe that systems like the NHS create their own set of problems.  Consider:

  • The number of health trusts in the UK that are operating with financial deficits has increased over the last 6 years.  According to the latest report from The King’s Fund, in 2009/2010 only 8% of health trusts in the UK spent more than they received. As of 2015/2016 this number has jumped to nearly 66%. The collective £1.85 billion deficit shared across all UK health trusts in 2015/2016 is the largest in history. Funding has not kept pace with the increasing demand for healthcare services. For the NHS to be sustainable the UK will need to get costs and revenue in line, either by increasing NHS funding (presumably, by increasing the tax burden on UK workers and employers), by reducing expenses (e.g. by narrowing the range of covered benefits), or through some combination of the two.  Both options are politically unpopular, but as it stands the financial trajectory of the NHS is not sustainable.
  • One way of addressing the problem of healthcare resource scarcity is by simply denying access to care for some.  But the UK does not do this.  In the UK all citizens have access to healthcare as a right.  This commitment does not eliminate the problem of scarcity; it exacerbates it.  The NHS must wrestle with situations where consumer demand outstrips available supply. In the UK if you need non-urgent care there is no guarantee that you will be able to receive this care quickly.  There are queues for non-urgent healthcare, and some will argue that these queues are unreasonably long.  NHS guidelines have established an 18-week waiting time for non-urgent consultant-led referral and treatment. This means that if you are faced with a non-urgent healthcare need (e.g. imagine that you are dealing with chronic hip pain and are in need of hip replacement surgery) you may have to wait as long as 4 1/2 months before treatment can begin, and this is only if the NHS is able to live up to the guidelines that it has established.  The maximum wait time for suspected cancer is just two weeks.  The NHS also observes that wait times vary among healthcare providers and have established a referral site where you can compare wait times before deciding where to setup your appointment for non-urgent care.
  • A system in which consumers experience healthcare as “free”incentivizes overuse of the system.  This is one of the great advantages of market-oriented healthcare systems have over systems like the NHS.  If I know that I need to pay something out of pocket for the care that I’m seeking, I’m much more inclined to consider whether I actually need the care before I go to the doctor. When consumers must account for the cost of healthcare at the point of service, this creates a rational check on overconsumption. In recent years reform advocates in the UK have sought to incorporate more market-oriented mechanisms into the UK healthcare system, as reflected in the Health and Social Care Act passed by British Parliament in 2012. But once again these reforms have been quite controversial and not well received by UK citizens concerned that these reforms resemble the encroachment of US-style healthcare in the UK.

No, you can’t have your cake and eat it too. Whether you prefer a Boston Creme or British scone, you will pay. There is no perfect healthcare system.  Every system faces (and creates) its own set of challenges.  When considering what we want in a healthcare system, maybe the most important question is not, “What system will best embody the values and commitments that I believe are essential to a just healthcare system?” Maybe the better question is “What system will give me the sorts of problems and imperfections that I am willing to live with?” In this regard the NHS wins hands down. Having said this, I don’t think it is realistic to expect that transforming US healthcare into a UK-style system is feasible given what we have: a well-established healthcare system in which the vast majority of doctors and hospitals are private contractors, not employees of the state. Pragmatically speaking, healthcare reform in the United States requires us to work with what we have, however imperfect what we have may be.



The morality of “forced transactions:” A reply to Jeff Hammond

The following is my reply to Jeff Hammond’s latest blog post, part of our ongoing discussion of healthcare ethics. Jeff’s blog post may be found here.  I’m also linking to Jeff’s personal blog, “A Teacher of the Law,” where our discussion/debate is also available.  


Jeff’s latest blog post does a lot to illustrate that what has appeared to this point to be a relatively mild, agreeable discussion about the moral values and shared commitments that unite conservative and liberal commentators on healthcare is, actually, a debate.  I find Jeff’s position incoherent as it stands. I want to explain more clearly the incoherence. Now it could be that I’m simply being dense here, or it could be that Jeff needs to articulate more fully some facets of his own thinking about healthcare policy that he has not yet explored. The incoherence that I see in Jeff’s latest blog post is not his alone. It is part and parcel to what many Republicans say when discussing the ACA.

I want to focus first on Jeff’s discussion of what he calls “forced transactions” (or “forced associations”).  When Jeff speaks of the “distaste that conservatives, classical liberals, and libertarians have for ‘forced associations'” I gather that he is describing his own distaste for being told what to do with his money.  The logic of Jeff’s comment is obvious and compelling.  If my money is my own, what right does the state have to force me to enter into a contract without my consent?

So what is a liberal like me, a liberal who supports the individual mandate, to say?  First of all, I think it is important to define more clearly the term, “forced transaction.” Jeff never defines the term, so let me offer up the definition that I think is implicit in his argument: A forced transaction occurs when I am coerced to pay for or provide a benefit, policy, or program or otherwise enter into an exchange without my consent.  By this definition, the ACA individual mandate qualifies as a forced transaction, for it uses the coercive power of the state to force me to contract with an insurance company even if I would rather avoid insurance altogether. The ACA also prohibits insurance companies from denying coverage on the basis of pre-existing conditions. That’s another forced transaction.

Assuming for the moment that this definition captures what conservatives claim is most troubling to them about the ACA, I regard the criticism as incoherent as it stands. Consider this: conservatives readily support a wide range of “forced transactions” in our society. Let me offer up just a few examples of some forced transactions that have had longstanding support across the American political spectrum:

  • We agree that it is morally permissible to use the coercive power of the state to force private property owners to pay taxes that fund local schools.
  • We agree that it is morally permissible to use the coercive power of the state to force taxpayers to fund universal police and fire protection.
  • We agree that it is morally permissible to use the coercive power of the state to force taxpayers to fund a national system of military defense.


In all of these cases, individuals are forced to pay for a benefit, policy, or program without their consent. Our tax-funded system of education is essentially a redistributive system in which some citizens–including citizens who have no children at all–are forced to pay for the education of other people’s children.  A homeless person that does nothing to fund the salary of the police officer will still benefit from the protection the officer will provide him if he is a victim of assault.  The fact that a religious citizen might be a deeply-committed pacifist who objects strongly that his tax dollars are used to fund wars he does not support will not stop us from insisting that he pay Uncle Sam. Every one of these cases qualifies as a “forced transaction.” I support all of these transactions, as do most conservatives.  But note that in every one of these cases it is possible to imagine free market alternatives that do not rely on state coercion:

  • In the case of education, we could simply tell parents to fund their own children’s education, fashioning a market of private schools and trusting private charity to provide alternatives for families who cannot afford tuition.
  • In the case of police and fire protection, we could turn these services over to private contracting companies and allow individuals to select from a range of personal defense contractors and subscription-based fire protection services.  While this may seem outlandish on its face, subscription-based fire protection is a real thing is some rural American communities. An elderly Tennessee couple discovered this several years ago when the fire department upon arriving at their house engulfed in flames refused to put out the fire because the couple had failed to pay the $75 subscription fee in advance.
  • In the case of national defense, we could dispense with a national military and simply allow individuals to enter into personal contracts with military defense contractors, with each contractor competing to serve the self-defense needs of their customers.

Crazy, right?  But this is the point: the fact is that most conservatives are ready to embrace these forced transactions, a real irony when considering that these same conservatives seem content to assume that the problem of forced transactions when applied to the ACA speaks for itself. As some more radically-minded (i.e. consistent) libertarians would observe from a vantage point that perceives forced transactions to be “abhorrent,” public education is actually worse than the ACA individual mandate, for the system forces people who do not have children to pay for benefits of those families that do.  At the very least the ACA mandate provides direct benefit to the party that is being coerced.

One possible reply that Jeff might make here is that the ACA mandate is different. The premium I pay to the insurance provider that I am forced to contract with is not like a tax (although the penalty for not doing so is); I am literally being forced by the state to pay for a product provided by another private party. But here again, I find Jeff’s position incoherent. Remember, Jeff and I agree that EMTALA is good public policy.  But what is EMTALA if not a quintessential example of a forced transaction in which the state wields its monopoly on coercive power to force two private parties–hospitals and patients in need of emergency care–into an exchange without respect to mutual consent? Here again, if conservatives are worried about forced transactions, why would they be any less concerned with a law that requires hospitals to provide emergency care, even when the hospital knows it will not receive full compensation for the services it provides?

Here is the point: I don’t think the real debate between conservatives and liberals–and by extension between Jeff and me–is about whether or not forced transactions can be justified. We already agree that some forced transactions are justifiable. The real debate is about the moral limits of forced transactions and the grounds upon which we believe specific forced transactions are to be justified.  In an earlier post I offered up some moral and prudential reasons why I support the ACA individual mandate. Christian political ethicists make frequent appeals to the idea of the common good as a starting point for understanding the legitimate aims of (coercive) public policy (for a good historical treatment of this, see Jean Bethke Elshtain’s Sovereignty: God, State, and Self). How this idea applies specifically to something like healthcare policy demands fuller exposition than I can give it here, but it does suggest that one way to discriminate among competing understandings of justifiable and unjustifiable forced transaction is by attending to the outcomes with respect to the common good. What I don’t think conservatives like Jeff can do is simply dismiss the individual mandate because it is a forced transaction.  The reply here is obvious: forced transactions permeate our political system, and you endorse many of them.  Why not this one too?

Before shifting to address a few specific comments in Jeff’s last post, I’ll quote Jeff’s “bottom line,” which I think well illustrates the conundrum of Jeff’s position:

(1) I agree with the moral imperative of EMTALA that, as a society, we should not a person die outside the ER’s front door.  (2) I also think that it is wrong for a person not to have some sort of way to pay for the inevitability of finding himself in some sort of emergent situation, because if the patient doesn’t pay for it, society will in the form of higher hospital and/or physician charges and/or higher insurance premiums.  (3) Perhaps the easiest way to rid myself of this conundrum is through the vehicle of the individual mandate.  (4) I’m more ambivalent about forcing people, through things like Congress’s individual mandate, to buy insurance to pay for their routine, yet non-emergent healthcare.  People have the freedom to do what they want with their money, and if they don’t want to plan ahead for their healthcare, that’s their choice.  By the same token, society should not have to bail them out when they get a devastating diagnosis.

It’s clear here that Jeff is wrestling with a tension in his position.  I suspect that he recognizes that EMTALA is an example of a forced transaction that he supports. However, while he is okay with using the power of the state to force providers to treat patients in need of emergency care, he is more reticent to use this same power on consumers.  But he also realizes that if you do not have some way of getting more healthy consumers to pay into our healthcare system that the harm–rising healthcare costs–adversely affects all of us. The “easiest way” to address the problem is to simply mandate that individuals purchase insurance.  My question for Jeff: if you are reticent to go down this path, what is your alternative?  All of us want a system that is sustainable, one in which people are able to receive the care that they need (admitting the ever-present fact of scarcity impedes our ability to fully realize this goal). Do you have a conservative alternative to offer up that will do this more effectively? Or is there a real-world example of a healthcare system that you think does this more effectively in a way that better reflects your natural resistance to forced transactions?

A few final comments as I try to tie up loose ends.  Jeff asserts that one of the “unstated conclusions” of my earliest post is that it is a moral imperative for individuals to purchase insurance for both emergent and non-emergent care.  Jeff is more open to the idea of forcing insurance for emergent care, but forcing coverage for non-emergent care is a step too far for him.  What Jeff would prefer is a system in which basic health insurance–what every citizen ought to have–is a lot like homeowner’s and car insurance, a policy that covers high dollar emergency care but not the more mundane expenses like yearly physicals or non-life-threatening illnesses (Note: Jeff no doubt would find it acceptable for you to privately contract with an insurance provider should you want a policy that covers more than emergency care).  In reply, I want to draw from the example that Jeff himself employs to clarify my own position.  Jeff asks us to imagine that you (the reader) are in this situation:

[Y]ou have pain in your abdomen.  You go see your doctor.  She orders some tests, and after interpreting the tests sends you to a specialist.  The specialist orders more sensitive tests herself, then sits you down and tells you that you have a Stage II cancer growing in your belly.  You’ll need a combination of surgery, chemotherapy, and radiation therapy to hope to get all of it.  You have no health insurance.  In fact, you’ve had to exhaust your meager savings and then go hat in hand to your in-laws to scrape up enough money to see the doctors and get their fancy tests.  You’re in a pickle.  By yourself, you have no way to pay the hundreds of thousands of dollars in hospital, doctor, pharmacy, and other outpatient charges that it will take to get you well.  The Affordable Care Act has obliterated the pre-existing condition barrier to getting health insurance (in the individual market), so you could go out and get insurance, if you could find a willing insurer in your state and could pay the monthly premium and the deductible.  However, in your financial situation that’s iffy.  Perhaps your better option would have been to plan ahead to buy health insurance before you got sick.

From Jeff’s perspective you acted imprudently when you failed to purchase insurance, so the fact that you are now confronted with a severe illness and bankruptcy-inducing medical bills is your own fault. Jeff’s response to you: “I tell you to buy health insurance or don’t buy health insurance – it’s none of my business what you do with your own money.  But if you don’t buy insurance, you should not expect society, with the force of government behind it, to backstop your imprudence of not planning ahead for your care.” Here again, it’s not difficult to feel the force of Jeff’s logic. Why should others be forced to pick up your tab?  Here is my two point reply:

(1) Jeff’s claim that you should have purchased insurance when you had the chance assumes that you (a) were in a financial position to actually afford insurance, and (b) were able to find an insurance provider that was willing to cover you.  The assertion that you ought to purchase insurance is an empty one if the cost of coverage is out of reach for you, or if no healthcare provider is willing to cover the condition for which you are seeking care.  The ACA strives to make health insurance more affordable, though with varying degrees of success, as critics have noted.  The ACA does this by providing income-based subsidies to help cover the cost of insurance. It also ensures access to coverage by prohibiting providers from denying coverage on the basis of pre-existing conditions.  Jeff needs to spell out more clearly his own moral assessment of these subsidies and this prohibition.  He cannot assume that his alternative will make insurance more accessible and affordable. I’d like to hear if Jeff is okay with using taxpayer funds to subsidize the cost of insurance so that people like you (the reader) can get the insurance that Jeff says you ought to have.

(2) Let me put in the most blunt way what I think Jeff is saying to you in the scenario above: “If you are the unfortunate victim who is afflicted with stage II cancer but who is financially unable to pay for the readily available treatment for your disease, it is morally acceptable to deny you access to this treatment.  However, when your cancer makes you so sick that you are in an emergency health crisis and must visit an emergency ward for your cancer to be treated, we will mandate that the hospital must provide care to you at that point.” This seems to me to accurately reflect the logic of Jeff’s position, which leans heavily on the emergent/non-emergent distinction.  Here I think there are good practical reasons for rejecting this distinction.  First of all, caring for non-emergent illnesses–or better yet preventative care–is less expensive than the care that we must provide when diseases advance to a later stage.   If you are afflicted with cancer, don’t I, cost-conscious healthcare consumer that I am, want your cancer to be treated at an earlier stage before you need the much more expensive care that will be demanded when you are in a full-blown health crisis? Second, a more comprehensive system of insurance creates incentives for people to make good healthcare choices (e.g. visiting their doctor every year for a checkup that will allow detection of emergent illnesses) that also reduces the overall cost of healthcare. If you are struggling to scrape by on your yearly income you are much more likely to visit a doctor when your insurance subsidizes the cost of the preventative care the doctor provides.  You are less likely to do so if you must pay the full cost out of pocket. Third, Jeff’s distinction between emergent and non-emergent care is difficult to apply to a range of illness that, while not immediately life threatening, are chronically debilitating but treatable.  Is Crohn’s Disease an emergent or non-emergent illness?  If emergent, does this mean that Jeff is committed to ensuring that victims of this disease are able to receive the lifetime of care that their chronic illness will require?  If non-emergent, then is this person much like the cancer patient above, obligated to purchase insurance in a system that insures that coverage for her will be affordable?  How does Jeff suggest we make healthcare affordable for you when you are that person in need of a lifetime of care?

Let’s close by returning full circle to Jeff’s qualms about forced transactions. While to this point I have defended the individual mandate, I feel the need to come clean, for I actually share some of Jeff’s concerns about the unseemliness of forcing consumers to buy goods and services from other private parties.  I continue to defend the mandate largely because I feel the need to bow to the reality of the present.  Whether we like it our not, our history has contributed to the circumstance that we are in, for we are a community in which access to healthcare for most of us is dictated by our relationship with a for-profit insurance provider.  This is not the system I would have chosen to create, but it is the one we are in.  The mandate is an imperfect way of trying to realize the aims of a healthcare system given that reality.  I’d be just as happy to lock arms with Jeff and march against the mandate if the alternative were a system that is more socialized, closer to what we see in other industrial democracies around the world.  The practicalities of shifting from a network of private for-profit insurance providers to any of the range of socialized alternatives seem impossible on their face in the current political moment.  Given the choice between the individual mandate and the United Kingdom’s National Health Service, I’ll choose the NHS. But my guess is Jeff would reject this as just another healthcare system that relies too heavily on forced transactions. In this respect the United States is in good company.




On Trying to Thread a Needle: Jeff Hammond on The Insurance Mandates and the Moral Limits of Forced Association

The following is Jeff Hammond’s latest contribution to our ongoing discussion of healthcare ethics.  This submission is Jeff reply to my earlier blog post, available here. I hope to have a reply to Jeff’s latest submission up on the blog either tomorrow or Monday–Vic


Thanks, again, to Vic for participating with me in this discussion.  Slowly but surely, we’re making our points, hopefully clear enough for our readers.

When I read Vic’s response from January 30th, I had a Homer Simpson moment.  What’s a Homer Simpson moment, you ask?  Well, I did not down a couple of doughnuts.  I did not yell at my versions of Bart and Lisa.  Rather, I exclaimed a sharp “D’oh!” when I realized the trap that had sprung about me.  But, I really shouldn’t say that I walked into a trap, for that would imply that Vic cunningly laid it for me.  Vic is far too congenial to take advantage of my oversight like that.  No, I set it for myself.  Rather, his response should be recognized for what it is – a good faith argument in the discussion we’re having using the only “grist” for his mill that he can use – my own words.

In my last blog post I wrote that the EMTALA coverage mandate – that everyone gets “stabilizing treatment” for an “emergency medical conditions” when they “come to the emergency department” can only be prudentially tied to the individual mandate found in the Affordable Care Act.  I then (unwittingly) backtracked and claimed that there was a moral tie between the EMTALA mandate and the individual insurance mandate.

That said, I do want to embellish my January 29th statement that Vic quoted in his January 30th response.  I think these nuances will more accurately reveal my position regarding health insurance and EMTALA.

1. I do believe that if a person faces the contingency of using a hospital or doctor’s emergency services, he should have some way of fully satisfying (paying) the bills that will follow from that emergency encounter.  In the end, everyone faces the contingency of using the hospital or doctor’s emergency services.

1.a.  That is, indeed, a moral claim, as I believe it is wrong to forcibly socialize the costs associated with this person’s (let’s call him “you” for purposes of our discussion) time in the ER.  In other words, if you don’t have some mechanism, whether a check or health insurance or some combinations of the two, to satisfy the bills associated with your emergency care, then those costs eventually will be spread to the rest of us in one of two main ways: higher prices charged by the hospital and/or doctors who treat you and higher health insurance premiums.

In essence, this point says that you should desire to plan ahead for your emergent health care contingencies because of what lies ahead for your fellows if you don’t.  When you go to the emergency room, you will be engaging in an ad hoc, forced transaction.  And both sides of the transaction use “force,” in a sense: the patient will demand the hospital and doctor’s services through the mandate of EMTALA, and the hospital and doctor “force” the financial terms of treatment on the patient.  [N.B.: I’m hoping that our debate will eventually focus on how those forced financial terms –  prices  charged by hospitals and some doctors – bear no reasonable relation to their production costs.  I think Vic and I will share some common ground on this topic.]

Yes, it is true that some patients never pay a cent toward their emergent care.  But, that is the exception and not the rule of contemporary healthcare.  Many, if not most, patients pay something towards their care.  Importantly, hospitals and doctors are keen to make sure that they get paid.  As a culture, we have long since left behind the idea that hospitals are true charities – entities that provide their services to the public for free.  Instead, America has substituted tax-exemption for charity.  That a hospital has tax-exempt status under Section 501(c)(3) of the Internal Revenue Code and similar state and local tax laws means only that the executives, employees, and trustees of the hospital cannot receive a share of the hospital’s operating profits.  It does not mean that the hospital doesn’t charge for its services.  Many times, those charges, as reflected on the hospital’s chargemaster, are not rationally related to what it costs to provide the good or service to the patient.  In other words, often times patients (or their insurers) are charged many times more than the “real” cost for a good or service.  Woe betide the person who does not have health insurance to front these charges.  Even then, some insurance do not fully satisfy the charges levied by hospitals or doctors and leave the patient to pay the rest.

2. Even so, one of Vic’s unstated conclusions in his last essay is: just as it is a moral imperative to procure health insurance to meet one’s health emergencies, it is equally morally imperative to have insurance for every other health issue that a person might face. Now, importantly, Vic might say that this raises a practical distinction without a difference.  In other words, if one has health insurance for emergencies then one has it for every other health issue that a person faces.  And that’s true.  That’s how health insurance works in America.  And that leads to one of the main reasons that health insurance and health prices are so distorted today is that we tend to use our (good) health insurance for everything – for the routine trip to the family doctor so she can see about our coughs and when we are taken to the hospital because we’re run over by the bus.  We use most every other insurance we carry – homeowner’s insurance and auto insurance to name two example – only when something truly terrible happens, like a house fire or serious car wreck.  On the other hand, we tend to use health insurance for everything after we meet our deductibles.

It’s this second moral imperative that I want to quibble with.  EMTALA is built on the premise that it is morally wrong, even indecent, to let one of our fellows to bleed out in the street.  Can we say, though, that it is equally indecent to let a person suffer without a way to pay for a slow-growing cancer or stable gallbladder disease or high-blood pressure or anything else that is serious, yet not emergent?  I don’t think so.  In my opinion it is unfortunate that the health insurance that the individual mandate covers includes one type of insurance for emergency care and for more routine, non-emergent care.  Yes, it is true that emergency treatment is a forced transaction; however, there should not (there’s that moral language again!) be a preference for forced transactions in non-emergent situations.  Forced transactions violate one of the core principles of Anglo-American contract law: freedom of contract. Parties to a contract should be perfectly free to enter (and exit) the contract at will.  I can choose to enter into a transaction with you or not.  Likewise, you can choose to enter into a transaction with me or not.  What makes contracts so wonderful in a capitalistic society is that that the contracting parties have thought ahead of time about the benefits and burdens they will accrue by engaging in the transaction, and after deliberation, they do it anyway because they think on balance the transaction will help them.  [N.B.: I’m in my tenth year of teaching the first year course in Contract Law to my home institution’s law students.  I’ve thought a lot about the moral implications of the “freedom of contract” principle.]

The scenario would go something like this: you have pain in your abdomen.  You go see your doctor.  She orders some tests, and after interpreting the tests sends you to a specialist.  The specialist orders more sensitive tests herself, then sits you down and tells you that you have a Stage II cancer growing in your belly.  You’ll need a combination of surgery, chemotherapy, and radiation therapy to hope to get all of it.  You have no health insurance.  In fact, you’ve had to exhaust your meager savings and then go hat in hand to your in-laws to scrape up enough money to see the doctors and get their fancy tests.  You’re in a pickle.  By yourself, you have no way to pay the hundreds of thousands of dollars in hospital, doctor, pharmacy, and other outpatient charges that it will take to get you well.  The Affordable Care Act has obliterated the pre-existing condition barrier to getting health insurance (in the individual market), so you could go out and get insurance, if you could find a willing insurer in your state and could pay the monthly premium and the deductible.  However, in your financial situation that’s iffy.  Perhaps your better option would have been to plan ahead to buy health insurance before you got sick.

So, you don’t have health insurance.  But that was the choice you made.  The individual insurance mandate tells you to buy insurance or pay a penalty (tax).  What the individual mandate really tells you is to buy health insurance (something good for you) or the government will tax you.  The individual mandate is a paternalistic impulse backed up with government’s monopoly of force.  On the other hand, I tell you to buy health insurance or don’t buy health insurance – it’s none of my business what you do with your own money.  But if you don’t buy insurance, you should not expect society, with the force of government behind it, to backstop your imprudence of not planning ahead for your care.

Well, this blog post is getting long in the tooth.  So, let me wrap it up.  Here is my bottom line: (1) I agree with the moral imperative of EMTALA that, as a society, we should not let a person die outside the ER’s front door.  (2) I also think that it is wrong for a person not to have some sort of way to pay for the inevitability of finding himself in some sort of emergent situation, because if the patient doesn’t pay for it, society will in the form of higher hospital and/or physician charges and/or higher insurance premiums.  (3) Perhaps the easiest way to rid myself of this conundrum is through the vehicle of the individual mandate.  (4) I’m more ambivalent about forcing people, through things like Congress’s individual mandate, to buy insurance to pay for their routine, yet non-emergent healthcare.  People have the freedom to do what they want with their money, and if they don’t want to plan ahead for their healthcare, that’s their choice.  By the same token, society should not have to bail them out when they get a devastating diagnosis.

I fully realize that an obvious criticism of my distinction between emergent and non-emergent healthcare is this: the patient with the Stage II cancer diagnosis will eventually become emergent, so just agree to the individual mandate now and be done with it.  While that argument recognizes that many (most?) healthcare conditions are on a continuum from manageable to quite severe, it does not fully consider the distaste that conservatives, classical liberals, and libertarians have for “forced associations”.  There is a deep and abiding reticence, even abhorrence, in these groups for being told what to do, with whom they should/must make contracts, and how they should/must spend their money.  [I thank Roger PIlon of the Cato Institute for the phrase “forced associations”.  He spoke at Faulkner Law on January 31st.  I asked him the question about the individual mandate for emergent patients.  He and I had a nice discussion in which he used the phrase “forced associations”.  You can see that I have used the phrase “forced transactions”.  They are the same thing, I think.  This blog post is, in part, working out my thoughts after my brief discussion with Dr. Pilon.]

Perhaps, in the end, our discussion about insurance mandates and healthcare must come down to a national moral consensus on values.  If the individual mandate is to be repealed by this Congress and President Trump, then the pre-existing coverage mandate will also have to be repealed.  We will then have to become comfortable with an idea voiced by Roger Pilon: we will have to be OK with people dying.  If we’re OK with some people dying, then freedom of contract and the person’s sovereign choices can be fully vindicated.  If we’re not OK as a society with persons dying, then the individual mandate with societal backstops will be kept.