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.





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