“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.”

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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.

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