Unagidon on Natural Rights and “Obamacare”
Now up on the homepage is Unagidon’s reply to Hadley Arkes’s recent First Things article about the Affordable Care Act. According to Arkes, any law that forces all citizens to enter into a private contract is not only unconstitutional but also a violation of natural rights. Unagidon explains:
[Arkes argues] that the Affordable Care Act’s “individual mandate” will force people to enter into insurance contracts against their will, and that “imposing on people a contract that they do not want would be quite as wrong as dissolving, without their consent, a contract they had knowingly made.” How strong is this argument?By mandating that everyone buy health insurance (or pay some kind of penalty), the Affordable Care Act would seem to violate the principle that contracts must be entered into freely. The actual content of a contract is not supposed to have any bearing on this principle. What matters is only that the signer of a contract had the choice to take it or leave it.
But is the content—and the social context—of a contract really irrelevant when we are talking about natural law? Are current insurance contracts unencumbered in the way that Professor Arkes suggests?…
[T]o really get to the bottom of the health-care crisis—and to see what’s wrong with Arkes’s argument—you need to understand more than the dynamics of the market. You must also understand the social contract that underlies it. As it happens, this contract actually has a name. It’s called the Emergency Medical Treatment and Active Labor Act (EMTALA), which was passed in 1986 under President Reagan. With that law, the nation decided that it wouldn’t allow health-care providers to toss indigent patients into the street. Hospitals have to treat anyone who comes to them, whether or not the patient can pay. Because of this law, there is no longer a neutral market space, of the kind imagined by Arkes, in which people can choose either to have health care or to forego it. Those who pretend to be taking their own chances by not buying insurance are really doing no such thing. If they show up at an Emergency Room before they are eligible for Medicare, they will be subsidized by tax-payers and those with private insurance. In other words, EMTALA is—in addition to being a very humane piece of legislation—an unfunded mandate. If Arkes believes that hospitals should be allowed to deny care to sick and injured people without health insurance (or without enough money to pay for services out of pocket), he should say so outright, for this is one of the consequences of his argument about contracts. That hospitals cannot do this now is one of the things that makes health insurance different from all other forms of insurance.
A good treatment of this issue here:
http://thejesuitpost.org/site/2012/01/the-supreme-issue-health-care-reform/
God Bless
If a “contract” is defined as an agreement *freely* entered into, then Arkes has a point — what the health care act mandates is not a contract. And maybe the legal definition of that word should not be messed with — contracts are too basic to too many important institutions to start using the word sloppily.
But why not call them something else. “Mandate” would be a good substitute. It is a requirement that someone do something, even against their wills. We already make important demands –being drafted, for instance, is a mandate as is paying taxes.
The only quesiton should be: is the mandate a fair one? Since, as unagidon says, the non-insured are already treated at hospitals, the demand that they provide for themselves is a fair one.
So the funding gap has to be made up by someone, and this someone is the privately insured patient, who pays between 120 and 140 percent of costs. This is why commercial insurance rates tend to rise even faster than the overall cost of health-care.
I don’t understand. If there is a 2% gap in paying for Medicare patients, and if to make up for it the privately insured patient pays 120 percent of cost, and if costs increase by 10%, why doesn’t the privately insured patient continue paying 120 percent of cost?
Claire, there’s two other factors. First, the number of uninsured is increasing, which means that the insured group loses members and the uninsured gains them. Second, the hospital needs to make a profit (even the “not for profit” ones) in order to buy expensive new machinery and keep an edge on other hospitals. (There’s a big hospital consolidation going on in the United States right now, which will mean less competition. Hospitals are either trying to avoid it by maintaining a healthy balance sheet, or they are trying to be acquired, also by maintaining a healthy balance sheet).
There is a third factor in that the mix of commercial payers paying more than 100 percent charges changes, depending on the competitiveness of the insurance companies. The stronger companies pay less and the weaker ones pay more. In some markets, one insurance company will come to dominate the market (defined as a market share of over 50 percent). As they get stronger, their lower paid portion of the mix increases.
Clear. Thanks!
There are now 1 million youngsters now insured to age 26. on parents plan. The ‘against’ Obama-care people probably have grandchildren, or children like 4 of mine, who are on Pop’s health insurance till age 26.
EMTALA isn’t a private contract; it is legislation. That EMTALA is still in existence (that God) and is still enforced (we pray) doesn’t seem to invalidate Arkes’ point about the importance of freely entering into private contracts.
One way to skirt Arkes’ dilemma is to implement a single-payer system, thus removing private consumer contracts from health care. I am not necessarily advocating that, although I will say that the more I think about the health care problems, I keep arriving at the conclusion that single-payer is where we ultimately need to, and will, end up.
Has Arkes ever considered that all of us who drive motor vehicles are “mandated” to have auto insurance? Haven’t we all been “forced” into a contract with insurance companies for our auto coverage?
Isn’t Arkes’ a motive in search of an argument?
We will never achieve the necessary limiting controls on burgeoning health care costs until the US adopts a single-payer system. The health care economics are seemingly as immutable as the laws of physics.
Maybe once chauvinistic American’s get over that Europeans and Canadians came up with the solution of single-payer first, politically it will be possible for the US to finally move in that direction?
Recognizing present political reality, President Obama had to settle for the Affordable Health Care Act. Until we can pry-off the death grip that corporate interests have on our politics [by overturning Citizens United v. Federal Election Commission], this is probably the best we can do.
Here in California there is still a strong sentiment [It has passed by referendum twice] to adopt single-payer healthcare – but first, we have to figure out how to get out from under Prop 13 and start taxing the rich again. Vermont seems to be on the verge of going in the single-payer direction.
This is the way that it happened in Canada – Saskatchewan was the first to go that route. Once it was piloted in the province, working out the kinks in the system, the rest of Canada followed suit in short order. [Interestingly enough, "panic and protests ensued" when Saskatchewan Premier Tommy Douglas implemented something like Medicare-for-All in the early 1960s. Douglas was vilified by some folks who were strikingly similar to our "Tea Partiers." Eventually, Douglas was named the "greatest Canadian" in a poll surging past Wayne Gretzky and Pierre Trudeau - I guess there is hope for US!]
I suspect that once Obamneycare is fully implemented in 2014 it wont take folks long to conclude that while it is an improvement over what we presently have, it wont be enough to hold down the astronomical cost projections into the future.
For a populace that is spoon-fed daily its ignorance and numbness by the likes of Fox News, President Obama must understand that you have to introduce “Change We Can Believe In” in smaller doses so that even the intellectually challenged like the Steve Ducey’s and Bill O’Reilly’s out there in America can get it.
Eric and Grant – found this very interesting historical article by Avery Dulles in America, dated 1968. It has some points that are applicable and support Eric’s above comments:
http://www.americamagazine.org/content/article.cfm?article_id=10722
Highlights:
- “In view of the American tradition of freedom and pluralism, it would be a serious mistake to use the encyclical as a kind of Catholic loyalty test. Nothing could so quickly snuff out the spirit of personal responsibility, which has done so much to invigorate American Catholicism in the past few years. Nothing could be more discouraging to young people and intellectuals, upon. whom the future of our Church so greatly depends.”
(suggest that the same could apply to the episcopal hierarchy’s claim that religious liberty is being restricted by this decision – they effectively make it to sound like a litmus test and, in their passion, miss nuances, etc.)
- “If the present crisis is prudently handled, it can become an occasion of growth. The American church stands only to gain from a fuller discussion of the issues raised by Rahner’s article and by other similar statements. It will take time before the desired consensus is achieved. And by what means is this to be fostered? There is every reason to think that freedom and moderation, rather than force and intimidation, will eventually prevail. But meanwhile much unnecessary suffering could be caused by undisciplined protest on the one hand and by bureaucratic overkill on the other.”
(again, would suggest that some bishops’ overkill or undisciplined protests are not prudential; making this federal decision out as an attack upon conscience sounds more like a threat i.e. force and intimidation)
Some key parts of Rahner’s approach in this article:
- “In conclusion, Rahner points out that the church, as a society involved in the total history of mankind, moves forward slowly in working toward a definitive position. The ecclesiastical magisterium is an indispensable element, but still only one element, in the total interplay of forces that work together to achieve a clarity of doctrine. Many other factors, such as the “sense” of the faithful, new acquisitions of knowledge by individual Christians and theologians, and the “signs of the times,” which present ever new and varying questions, all have a contribution to make. It would therefore be unrealistic to demand total clarity from the outset. The individual Christian, relying on principles such as those outlined in the preceding paragraphs, must seek to reach a conscientious personal decision that does justice to all the factors. He must assume responsibility for his own decision before God.”
Jim Jenkins,
You wrote -
President Obama must understand that you have to introduce “Change We Can Believe In” in smaller doses so that even the intellectually challenged like the Steve Ducey’s and Bill O’Reilly’s out there in America can get it.
You’re calling people who you disagree with “intellectually challenged”. But you twice in one sentence use the possessive instead of the plural from when referring to those you consider intellectually challenged. As the online Meredith Grammar review states:
“The correct use of plural and possessive forms may seem like a minor issue. Among educated persons, however, incorrect forms, especially misuses of apostrophes, stand out like red flags. One area executive has said he will not hire an applicant whose letter or resume includes such an error.”
Thanks Frank Gibbons for making obvious the depth of my intellectual challenge. It’s good to know that someone out there cares enough to proof text what’s written here.
I certainly wouldn’t want to propagate among dotCommonweal’s august readership the misuse of plural and possessive forms. After all, standard grammatical forms is all that separates one from the plebeian. You never know when an “area executive” with a job vacancy could be reading along here …
Now, speak to the point, Frank: Do you, or don’t you, support steps toward universal access to quality, affordable health care?
About the single payer: Vermont, in a move that makes it unique among the states (and I mean really unique, not “more unique,” or “very unique” or any of that sort of thing) is moving towards a single-payer system following the signing into state law of a bill last October to set up Green Mountain Care. Is this because we are a very small state? Because we sit up on the Canadian border and are influenced by all those European-style socialists in Ottawa and Montreal who rode easily through the Great Recession? Because the former Republican stronghold has now become a People’s Democracy?
Here’s a description:
http://www.kaiserhealthnews.org/Stories/2011/October/02/Vermont-single-payer-health-care.aspx
Whatever one thinks of the plan, it is by no means a foregone conclusion that it will do much to contain health care costs, and some fear that it will mean measures that might lower patient care (hospital consolidations, for instance, in a state where terrain and climate make transportation tricky — there’s an ice-storm coming tonight).
Still, if it works and confounds the nay-sayers, it might be a bellwether for the country, as the governor clearly hopes it will be.
I don’t really sympathize much with those opposing mandated coverage, and in the 2008 election thought that Clinton had the better of the argument with Obama on this very point. Perhaps that’s because I’ve always thought of social contracts as useful philosophical fictions, invented by thinkers like Hobbes and Locke to drive home their points.
Side issue –
In all of these discussions, nobody seems to mention massive medical research as a key to reducing health care costs drastically. Yes, we already spend billions on it, but not nearly enough. For instance, not all that much is being done in plenipotent skin cell research, the ethically non-objectionable kind of stem cell. Those cells are the ones that promise to do what embryonic stem cells do, and some say the skin cell type will do it better because, unlike the embryonic ones, they pose no rejection problem.
Just this week there was a big announcement about embryonic cells improving the sight of some blind people enormously. Why aren’t the skin cell type also being researched for this? 30% of people 75-85 years of age have macular degeneration, and good treatment is very expensive. Think of the bills when the boomers are 75!
Why aren’t we systematically funding massive research into the most common and expensive diseases?
Disclaimer — I have macular degeneration. I urge you all to wear sunglasses whenever you go out starting when you’re young. Otherwise you too could develop the disease. (Yes, it’s probably an air pollution/sunlight problem that is producing the high incidence.)
About availability of health care — New Orleans used to have excellent care for poor people simply because Charity Hospital here (run by the Sisters of Charity for the State) was the teaching hospital for both Tulane and LSU Medical Schools, and it was a bus ride away for most people, and bus service used too be excellent. No more, but neighborhood health clinics are, I think, a major new development in health care. We need more.