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:
- 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.
- 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?
- 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…