Hadley Arkes

Apart from anything else he had to say, the writer Unagidon gave me a courtesy in engaging the argument I made on “Obamacare and Natural Rights.” He also showed the kindness, not uniformly shown these days, of citing some passages from my piece; he was willing to allow the voice of the writer to be sounded in the piece, even as he sought to criticize the argument. But I respond mainly on that concern for Obamacare and “natural right,” because Unagidon curiously misread my piece on those very points.

One of the key points in my essay was that I was not joining the move to find the constitutional fault in Obamacare in the fact that it would compel people to buy a private product—namely, medical insurance. I was arguing that the people making that argument were getting caught in the artificial language and coils of the Commerce Clause. If we considered the sweep of the powers already sustained under that Clause, forcing people to buy a product was no longer a momentous novelty. With the Civil Rights Act of 1964, the federal government had penetrated deeply into the ordering and regulation of the private sphere. It told people who were quite unwilling to have commerce with black people that they had to engage with black people if they wished to stay in business. As I said in my piece—and as Unagidon surely should have noticed—it was odd to find some of our best jural minds now reaching “the thunderous conclusion that with Obamacare we are—gasp—going to be compelled to buy something.” The very point of the appeal to natural right was to break away from the formulas of the Commerce Clause and take matters back, as judges to use to take them back, to the axioms of natural right that underlay the Constitution.

I had invoked the argument made by Chief Justice John Marshall and Daniel Webster that it may be quite as wrong to impose on people a contract they did not wish as to impair a contract they had willingly made. Unagidon, for the most part careful about what he imputes to me, made a serious mistake by leaping to this inference: that “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.”

Unagidon correctly notes that a stance of that kind would be at odds with a natural-law argument, for no argument based on natural law would accept the legitimacy or rightness of any contract simply because it was made by consenting adults—a contract for prostitution, for hit murder, or consent to dueling. He might not be aware that this is the position I’ve taken for over 30 years in my writings, but even  more recently, he might have seen that I had made this point explicit again in my piece on “The Mirage of Enumerated Powers” in the Claremont Review of Books (Winter 2010-Spring 2011). But even without seeing any of these things, he should have surmised that, if I understood natural law, it would have been entirely implausible to impute to me the notion that any contract was rightful if people were simply willing to enter it.

On the substance, though, of Obamacare: We could make the eyes of readers glass over by affecting high battle over things like deductibles, co-payments, and the mechanics of different schemes of policy, while omitting entirely the deeper principles that really form the point of dispute for us. I’m afraid that Unagidon simply passes by all of those layers of serious questions by simply accepting, without reflection, the layers of laws that have compromised those principles and brought us to the bind we are in. He is perfectly right that we are brought to the point of the mandate, the requirement to buy insurance, as a result of the Emergency Medical Treatment and Active Labor Act (EMTLA), the Act that barred hospitals from turning away patients. That Act would saddle hospitals with massive bills from people who could not pay them. The result, wholly predictable, was to push some hospitals to the point of bankruptcy unless the federal government stepped in to fund the obligation it had enjoined. We take matters yet another step when we forbid insurance companies to refuse new policies on the basis of “pre-existing conditions.” That kind of move virtually obliterates the logic of insurance. The policy can be absorbed by the insurance companies only if the government will guarantee the supply of clients by forcing people to buy the insurance they sell.

We have, then, a kind of “iatrogenic” problem—where the doctoring has created or deepened the malady. The very attempt of the government to supply the solution has created the need for a remedy that extends the powers of the government.  Unagidon makes a serious mistake if he neglects to see the dynamic set off by a sweep of regulation that will drive more and more people out of private plans, into a public net, and bring more decisions on treatment under the schemes of planning and rationing.

And that brings us to what Unadigon seems to regard as his culminating point: “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.”

Surely, it has not passed the understanding of Catholic intellectuals that one may be committed to the principle that “all men are created equal,” that one could seek the broadest provision of medical care, that one could have a special concern for the protection of the weak and the poor—and yet not be persuaded that the best way to achieve these ends is through a system of medical care dominated by the government, and engaging at critical points the monopoly powers of law in refusing treatment to patients. To argue over these kinds of questions is not to be at odds over the moral postulates that should move us and govern our judgments. It is entirely false of Unagidon to suggest that, because I have deep reservations about a system of medical care controlled by the government, I wish to deny medical treatment to the “sick and injured.” It all rather recalls H. L. Mencken’s line about the people who seem to think that “if we are reluctant to buy the Cancer Salve, it must be because we want Uncle Julius to die.”

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

Unagidon replies:

I thank Hadley Arkes for the clarification of his views and for the opportunity to continue the discussion.

Arkes points out that in my response to his First Things article I did not really address the fact that he contrasted what is unconstitutional with what is contrary to natural law. This is true. That distinction is subtle but real. Arkes rejects the effort to ground objections to the Patient Protection and Affordable Care Act in the Constitution. He agrees with the objections, but wishes to ground them instead in natural-law theory. Either way, the main objection is that people would be forced to enter a health-insurance contract. Arkes believes that a case against the Affordable Care Act based on natural law is more robust than one based on the Constitution—a reasonable belief if one thinks, as Arkes does, that natural law underlies the Constitution. His argument here may be of value to lawyers who are opposing the Affordable Care Act, but it also implies that people who claim to believe in natural law (for example, Catholics) are bound to oppose the Affordable Care Act for moral reasons.

If we ignore the particulars of the act itself for a moment, we are left with the general principle that a forced contract violates natural law because contracts are things that must be entered into voluntarily. So the Civil Rights Act, which requires unwilling (white) shopkeepers to serve African Americans, would seem to violate natural law. It would be fair to describe Arkes as a kind of consistent Catholic libertarian: libertarian because of his focus on individual contracts and Catholic because he recognizes that, according to natural law, not all voluntary contracts are licit.

As for the “layers of serious questions” about the Affordable Care Act and its implications, which Arkes claims I am passing over, I have mentioned in other things I have written for Commonweal that I am an executive for a major national health-insurance company.  (I would not expect Professor Arkes to know this.)  I have also been a member for some time of the national team that my company organized to address the question of “Obamacare.” I am well versed in the complexities of the Affordable Care Act and its many possible outcomes. I believe that Professor Arkes’s contention that the unfunded government mandate imposed by the Emergency Medical Treatment and Active Labor Act (EMTLA) led to higher costs, which in turn led to the government becoming involved in a national medical payment scheme (i.e., the Patient Protection and Affordable Care Act), is not quite correct. What actually happened is that after World War II healthcare gradually became an expected part of labor compensation. From then on, it began to be seen as a right. Workers began to demand it, and the general public demanded it for non-workers in the form of Medicare, Medicaid, and finally EMTALA. In my earlier response to Arkes’s First Things article, I outlined the failure of the market to provide universal coverage and to control costs. I know that Arkes opposes EMTALA and other government intrusions into the insurance market, and I can only assume that he would like to see these things rolled back. If they were rolled back, then the market for medical services would consist entirely of people entering or not entering into voluntary contracts with private-insurance companies and health-care providers.

But medical coverage (and Arkes is right that medical coverage is not really insurance in the traditional sense) has become one of a constellation of rights that developed in the twentieth century—and not just in the United States. Let me borrow Arkes’s H. L. Mencken quote—“if we are reluctant to buy the Cancer Salve, it must be because we want Uncle Julius to die”—and add that this is in fact true if the Cancer Salve actually cures cancer. Access to modern medical care cures ills; lack of access can cost people their lives; and the current market system does not provide adequate access. This is the situation that we find ourselves in. The real question people like Arkes should be asking is whether or not natural-law theory allows us to understand health care as a right.

Unagidon is a frequent contributor to Commonweal.