Natural Law & the Affordable Care Act

An Exchange

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.



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<blockquote>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.</blockquote>

Lovely.  Yes.  Thank you!

While the Editorial commentary gets off to a rocky start in my view, it ends upon a note of the greatest significance in my view:

"Nor should the bishops underestimate the potential this issue has for further dividing Catholics. In opposing the extension of access to contraception to tens of thousands of women, the church has once again maneuvered itself into a position where it will widely be seen—by Catholics and non-Catholics alike—as an institution in which celibate old men lay down the rules for how women should conduct themselves in the most intimate realm of their lives."

This debate between Arkes and Uangidon seems to this modernist at least, to high-light the central problem faced by the retrograde hierarchy in its knee-jerk defense of "religious freedom," up to and including the threat of withdrawing health care insurance to its civil employees. Women still don't count enough to receive a "sensum fides" deference in the one area that men surely know less about.

The seeming position in the Editorial comments that the Catholic Church is uniquely defined by its "the fundamental corporate and institutional nature" simply highlights, that "religious freedom" is not ultimately an artifact of the US Constitution. If the hierarchy needs the Constitution to justify the evident inequity of penalizing Catholics and non-Catholics alike for the otherwise unremarkable adoption of activist birth control then it would seem to have abandoned the Creed (strangely silent on reproduction it seems for a matter of such "great importance" to the History of Salvation).

Arkes makes the point that for-profit mutual aid principles of insurance have failed to keep pace with what health care can be provided in the service of a fulsome and mindful life over a wide range of presenting natural disorders.

Natural law argument that becomes an extension of secular libertarian smugness is not serving the 99.9% of Americans who are underwriting the growing economic inequity in this Country. I would suggest that argument by "a reserved right to opt out" of the broadest consensus at the Commons of 300+ million souls is too facile by far.

I really never thought Commonweal placed any stock in the Natural Law. For years it has seemed to play little or no role in your positions on many issues. 

The most fundamental question in all of this is whether or not it is OK to withhold help when you are able to give it and someone else needs it, and when giving it would result in a minor inconvenience to yourself in comparison with the good it would do to release the help.

That is one of the most fundamental questions of all morality.  To look into it deeply one must ask, "Does it matter at all if the person needing help deserves it?" and "What is the definition of 'need'?"

As a side note to all this, prior to the affordable care act taking effect, all the insurance companies are dumping very sick patients into government programs.  Often there is a fatal gap between the time when the insurance can no longer be afforded by the patient and the time when that person is elegible for a government replacement program like medicaid or medicare,  Suppose I am working and suffer a serious heart attack or stroke and am no longer able to perform my job.  As soon as my medical leave expires (assuming that such a thing exists where I work) I will be out of work.  I can apply for COBRA.  I am now out of work, disabled and possibly hospitalized.  How can I afford COBRA?  It may take as much as a year before another medical program kicks in.  During that year, physical therapy that may have affected my long term outcome is withheld.  I may fail to seek help for a medical emergency due to fear over the bills and die before any help arrives.  That is the fatal gap.

I would remind professor Arkes or John Paul II's admonition in Centesimus Annus (34):







"It would appear that, on the level of individual nations and of international relations, the free market is the most efficient instrument for utilizing resources and effectively responding to needs. But this is true only for those needs which are 'solvent', insofar as they are endowed with purchasing power, and for those resources which are 'marketable', insofar as they are capable of obtaining a satisfactory price. But there are many human needs which find no place on the market. It is a strict duty of justice and truth not to allow fundamental human needs to remain unsatisfied, and not to allow those burdened by such needs to perish."


There was an article about a year ago published, I believe in The Atlantic Monthly, by a gentleman whose views had changed radically on "health insurance" (he was originally an advocate of 'single payer', I believe) after his experience dealing with both private and public health insurance entities in an attempt to get the best healthcare possible for his elderly father. I'll have to dig through my files (or do a better job on my failed internet search) to find it. However, after his father had passed away, he spent considerable time analysing the issue, and his conclusion was that the problem is "healthcare insurance itself." Basically he was advocating for government and private industry get out of the health insurance business totally, except for "catastrophic insurance." It seemed to make good sense to me at the time. The root of the problem, as he saw it, was that health insurance allows third parties to decide health issues and encourages over use of insurance by individuals who think "I'm not paying for it." He advocated individuals and families take full reaponsibility for their own health care, by making health one of the core items in the family budget that require savings and wise choice. Health savings accounts would be encouraged and given favorable tax treatment by the government. An "industry" would develop advising people on how to save for health needs and how to get the best care for their money. The only "mandate" in this system would be that each family or individual over a certain age would be required to purchase "catastrophic healthcare insurance" to assure medical emergencies do not cause bankruptcy. There would still be the need for some type of health care safety net, particularly for young children and the very elderly. It seemed like an intriguing and innovative approach.


Wayne Sheridan, what you say makes sense IF we remember that companies that provide health care benefits now provide most of the premium for those benefits as part of the total compensation package of the worker.  Were it the case that these companies converted this into a cash wage payment to the worker (and the company would then get out of the insurance business), what you suggest could be workable.  But absent this, health expenses would skyrocket beyond the means of most people.  The average monthly payment for EACH person in a family for private health insurance is close to $500, most of which is typically paid by the company.  You can probably see what would happen if this were to be converted to another household expense for the average family


I have seen some studies which claim that if health care were made a personal/family responsibility companies would convert this premium payment into a wage payment, if only to get out from under the burden of providing insurance.  I leave it to you to determine how often this would actually happen.  But even when it did happen, in the absense of cost controls the consumer would have to directly swallow the annual health care increase, which are about double the rate of normal inflation (or more).

unagidon, perhaps companies would convert their portion of healthcare costs to a direct wage paymenst to get out of the healthcare insurance provider business once and for all. Also, healtcare providers might be more cost conscious, ending, or a t least slowing, the yearly rise in healthcare costs, if they knew they would be paid direct by the patients, who now would be more cost conscious. I am going to find that article one way or another and may have more details on the proposal at that time.


Wayne Sheridan, I think that companies would love to get out of the insurance business in order to save themselves from cost inflation.  If we assume for a moment that companies would actually convert their current premium payments into a wage payment to the worker, this still doesn't address the question of rising costs.  One thing about medical costs that is hard to address is that there isn't a transparent market for medical services as there is for, say, automobiles.  Specific quality and cost information for doctors and medical services (especially complex medical services) is hard to come by.  

unagidon I think medical "conumers," now in control and having to pay for their own medical care from their savings, will demand more transparency. An industry will surely develop comparing services, outcomes and costs. The internet will facilitat this. Costs will be contained much easier than in today's insurance dominated healthcare system.


Wayne, would this transparency appear before or after everyone started paying everything out of pocket.

Unagidon, I'm not certain. There would have to be a transition period, for sure. We couldn't go from an insurance-based system to another overnight. Healthcare providers would have to provide costs upfront to be competitive; there would be independent (there are some now) evaluations of doctors, hospitals, etc. Who of us now, if our insurance "company," whether that be the government or private, or both, questions what is charged when we pay little or nothing of the cost? But, if a hospital is going to charge me $25 for an aspirin as part of my treatment, and I have to pay for that out of my own pocket, I'm certainly going to question it.


Unagidon, another potential positive of no health insurance healthcare would be the natural promotion of "wellness." The people who live unhealthy lifestyles and engage in practices that are known to be injurious to one's health will no doubt rethink their ways and many will reform if they will have to pay for their health conseuquences rather than a third party. The now nascent wellness industry would flourish, with people more interested in living healthy lifestyles.


Wayne, we are at the point now where people think that out of pocket medical costs (co-pays and co-insurance) are too high.  This is not an accident.  Companies have been trying not to bear the full burden of double digit medical inflation and have been passing the costs on to their members.  This could have taken the form of upping the portion of premium that the member pays.  But we in the insurance industry have found that by converting the extra cost into an out of pocket payment that people can (in theory) choose to make, we could make people exercise their judgment about going to the doctor.  (You may have noticed thar emergency room usage tends to have higher co-pays associated with it). 

The point is that people want comparative cost data now and it is hard to come by even for us.  Doctors and hospitals are willing to give us positive information but not negative information.  (Try asking your personal physician how many people he's killed and seewhat happens).  Even when we use our own claims experience (and insurance companies have a lot of data) if we say that Doctor X issee specially expensive or has poor outcomes, the provider will argue that our data represents a skewed sample of the provider's entire performance.  There is a demand for price and quality transparency even now and providers don't want to give out all the information.

A big question is whether this makes the market for medical services a different sort of market than the market for automobiles.  There are certainly monopoly conditions for physicians, who all belong to a single national "union" in the form of the AMA.  Hospitals have become very consolidated if not monopolized in the past thirty years.  Both of these weigh against market transparency.

In general, the days when insurance was a full indemnity thing where went obtained service blind to the cost have been over for a while.

Regarding "wellness", our experience in the insurance industry is that people are far more likely to pursue wellness initiative in the context of the workplace than by themselves as individuals.  Part of this is because people are under labor discipline at work and are already complying with things that they would probably not comply with so readily at home (which is why we call it "work").  Part of it is that people tend to comply with wellness intiatives (and so much else, really) in a social context.  I know that this is counter intuitive; one would expect people to work naturally in their own interests.  But would you be surprised to hear that the compliance rate for, say, diabetes medicine is like 65% and that for about 35% of the population death itself is not a severe enough outcome for them to be incented to take their medicine?

Still, you make another excellent point.  When a country (or a company) structures insurance benefits, what they often do is begin with the amount of money they have to spend.  They then build up services from the "bottom" up (preventative and wellness services) and from the "top" down (catastrophic coverage) to leave what we technically call a "donut hole" in the middle where people will have to pay mostly out of pocket and will be forced into the kind of decisions that you propose.  This was actually how the Medicare drug benefit was constructed under the Bush administration.

Unagidon, thank you for your detailed responses. I still have not located the original article, which I now believe may have been in The New York Times Sunday Magazine and not in The Atlantic. My search continues.


Unagidon, I accept your statistics on non-compliance now; however, I still believe that having to pay for their own medical care out-of-pocket (or, more likely, out of their health saving accounts which would revetr to them or their heirs at one point) would be an incentive to higher compliance. I also think workplace groups, fraternal, religious, neighborhood, etc. would naturally apring up to help people to live better lifestyles and they would be popular as it would be in the individual's, and family's, best financial interest, as well as medical interesst, to join and participate.

Also, I think having to deal directly with the public, including, I'm sure, more public interest groups, rather than the health insurance industry, will compel healthcare providers to more transparency. Maine Medical will be forced to be more transparent, let's say, if St. Mary's is transparent, or likely to be forced to loose clientele.


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