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.