Round 7: McCracken on “Forced Associations”

Below is Vic McCracken’s latest post in our ongoing debate/discussion regarding the morality of the individual insurance mandate found in the Affordable Care Act.

The term “forced associations” was used by Dr. Roger Pilon in his talk at my home institution, Faulkner University, Thomas Goode Jones School of Law, on January 31, 2017.

Vic’s post may also be found on his blog, christianethicsbites, here.

Jeff’s latest blog post does a lot to illustrate that what has appeared to this point to be a relatively mild, agreeable discussion about the moral values and shared commitments that unite conservative and liberal commentators on healthcare is, actually, a debate.  I find Jeff’s position incoherent as it stands. I want to explain more clearly the incoherence. Now it could be that I’m simply being dense here, or it could be that Jeff needs to articulate more fully some facets of his own thinking about healthcare policy that he has not yet explored. The incoherence that I see in Jeff’s latest blog post is not his alone. It is part and parcel to what many Republicans say when discussing the ACA.

I want to focus first on Jeff’s discussion of what he calls “forced transactions” (or “forced associations”).  When Jeff speaks of the “distaste that conservatives, classical liberals, and libertarians have for ‘forced associations’” I gather that he is describing his own distaste for being told what to do with his money.  The logic of Jeff’s comment is obvious and compelling.  If my money is my own, what right does the state have to force me to enter into a contract without my consent?

So what is a liberal like me, a liberal who supports the individual mandate, to say?  First of all, I think it is important to define more clearly the term, “forced transaction.” Jeff never defines the term, so let me offer up the definition that I think is implicit in his argument: A forced transaction occurs when I am coerced to pay for or provide a benefit, policy, or program or otherwise enter into an exchange without my consent.  By this definition, the ACA individual mandate qualifies as a forced transaction, for it uses the coercive power of the state to force me to contract with an insurance company even if I would rather avoid insurance altogether. The ACA also prohibits insurance companies from denying coverage on the basis of pre-existing conditions. That’s another forced transaction.

Assuming for the moment that this definition captures what conservatives claim is most troubling to them about the ACA, I regard the criticism as incoherent as it stands. Consider this: conservatives readily support a wide range of “forced transactions” in our society. Let me offer up just a few examples of some forced transactions that have had longstanding support across the American political spectrum:

  • We agree that it is morally permissible to use the coercive power of the state to force private property owners to pay taxes that fund local schools.
  • We agree that it is morally permissible to use the coercive power of the state to force taxpayers to fund universal police and fire protection.
  • We agree that it is morally permissible to use the coercive power of the state to force taxpayers to fund a national system of military defense.

In all of these cases, individuals are forced to pay for a benefit, policy, or program without their consent. Our tax-funded system of education is essentially a redistributive system in which some citizens–including citizens who have no children at all–are forced to pay for the education of other people’s children.  A homeless person that does nothing to fund the salary of the police officer will still benefit from the protection the officer will provide him if he is a victim of assault.  The fact that a religious citizen might be a deeply-committed pacifist who objects strongly that his tax dollars are used to fund wars he does not support will not stop us from insisting that he pay Uncle Sam. Every one of these cases qualifies as a “forced transaction.” I support all of these transactions, as do most conservatives.  But note that in every one of these cases it is possible to imagine free market alternatives that do not rely on state coercion:

  • In the case of education, we could simply tell parents to fund their own children’s education, fashioning a market of private schools and trusting private charity to provide alternatives for families who cannot afford tuition.
  • In the case of police and fire protection, we could turn these services over to private contracting companies and allow individuals to select from a range of personal defense contractors and subscription-based fire protection services.  While this may seem outlandish on its face, subscription-based fire protection is a real thing is some rural American communities. An elderly Tennessee couple discovered this several years ago when the fire department upon arriving at their house engulfed in flames refused to put out the fire because the couple had failed to pay the $75 subscription fee in advance.
  • In the case of national defense, we could dispense with a national military and simply allow individuals to enter into personal contracts with military defense contractors, with each contractor competing to serve the self-defense needs of their customers.

Crazy, right?  But this is the point: the fact is that most conservatives are ready to embrace these forced transactions, a real irony when considering that these same conservatives seem content to assume that the problem of forced transactions when applied to the ACA speaks for itself. As some more radically-minded (i.e. consistent) libertarians would observe from a vantage point that perceives forced transactions to be “abhorrent,” public education is actually worse than the ACA individual mandate, for the system forces people who do not have children to pay for benefits of those families that do.  At the very least the ACA mandate provides direct benefit to the party that is being coerced.

One possible reply that Jeff might make here is that the ACA mandate is different. The premium I pay to the insurance provider that I am forced to contract with is not like a tax (although the penalty for not doing so is); I am literally being forced by the state to pay for a product provided by another private party. But here again, I find Jeff’s position incoherent. Remember, Jeff and I agree that EMTALA is good public policy.  But what is EMTALA if not a quintessential example of a forced transaction in which the state wields its monopoly on coercive power to force two private parties–hospitals and patients in need of emergency care–into an exchange without respect to mutual consent? Here again, if conservatives are worried about forced transactions, why would they be any less concerned with a law that requires hospitals to provide emergency care, even when the hospital knows it will not receive full compensation for the services it provides?

Here is the point: I don’t think the real debate between conservatives and liberals–and by extension between Jeff and me–is about whether or not forced transactions can be justified. We already agree that some forced transactions are justifiable. The real debate is about the moral limits of forced transactions and the grounds upon which we believe specific forced transactions are to be justified.  In an earlier post I offered up some moral and prudential reasons why I support the ACA individual mandate. Christian political ethicists make frequent appeals to the idea of the common good as a starting point for understanding the legitimate aims of (coercive) public policy (for a good historical treatment of this, see Jean Bethke Elshtain’s Sovereignty: God, State, and Self). How this idea applies specifically to something like healthcare policy demands fuller exposition than I can give it here, but it does suggest that one way to discriminate among competing understandings of justifiable and unjustifiable forced transaction is by attending to the outcomes with respect to the common good. What I don’t think conservatives like Jeff can do is simply dismiss the individual mandate because it is a forced transaction.  The reply here is obvious: forced transactions permeate our political system, and you endorse many of them.  Why not this one too?

Before shifting to address a few specific comments in Jeff’s last post, I’ll quote Jeff’s “bottom line,” which I think well illustrates the conundrum of Jeff’s position:

(1) I agree with the moral imperative of EMTALA that, as a society, we should not a person die outside the ER’s front door.  (2) I also think that it is wrong for a person not to have some sort of way to pay for the inevitability of finding himself in some sort of emergent situation, because if the patient doesn’t pay for it, society will in the form of higher hospital and/or physician charges and/or higher insurance premiums.  (3) Perhaps the easiest way to rid myself of this conundrum is through the vehicle of the individual mandate.  (4) I’m more ambivalent about forcing people, through things like Congress’s individual mandate, to buy insurance to pay for their routine, yet non-emergent healthcare.  People have the freedom to do what they want with their money, and if they don’t want to plan ahead for their healthcare, that’s their choice.  By the same token, society should not have to bail them out when they get a devastating diagnosis.

It’s clear here that Jeff is wrestling with a tension in his position.  I suspect that he recognizes that EMTALA is an example of a forced transaction that he supports. However, while he is okay with using the power of the state to force providers to treat patients in need of emergency care, he is more reticent to use this same power on consumers.  But he also realizes that if you do not have some way of getting more healthy consumers to pay into our healthcare system that the harm–rising healthcare costs–adversely affects all of us. The “easiest way” to address the problem is to simply mandate that individuals purchase insurance.  My question for Jeff: if you are reticent to go down this path, what is your alternative?  All of us want a system that is sustainable, one in which people are able to receive the care that they need (admitting the ever-present fact of scarcity impedes our ability to fully realize this goal). Do you have a conservative alternative to offer up that will do this more effectively? Or is there a real-world example of a healthcare system that you think does this more effectively in a way that better reflects your natural resistance to forced transactions?

A few final comments as I try to tie up loose ends.  Jeff asserts that one of the “unstated conclusions” of my earliest post is that it is a moral imperative for individuals to purchase insurance for both emergent and non-emergent care.  Jeff is more open to the idea of forcing insurance for emergent care, but forcing coverage for non-emergent care is a step too far for him.  What Jeff would prefer is a system in which basic health insurance–what every citizen ought to have–is a lot like homeowner’s and car insurance, a policy that covers high dollar emergency care but not the more mundane expenses like yearly physicals or non-life-threatening illnesses (Note: Jeff no doubt would find it acceptable for you to privately contract with an insurance provider should you want a policy that covers more than emergency care).  In reply, I want to draw from the example that Jeff himself employs to clarify my own position.  Jeff asks us to imagine that you (the reader) are in this situation:

[Y]ou have pain in your abdomen.  You go see your doctor.  She orders some tests, and after interpreting the tests sends you to a specialist.  The specialist orders more sensitive tests herself, then sits you down and tells you that you have a Stage II cancer growing in your belly.  You’ll need a combination of surgery, chemotherapy, and radiation therapy to hope to get all of it.  You have no health insurance.  In fact, you’ve had to exhaust your meager savings and then go hat in hand to your in-laws to scrape up enough money to see the doctors and get their fancy tests.  You’re in a pickle.  By yourself, you have no way to pay the hundreds of thousands of dollars in hospital, doctor, pharmacy, and other outpatient charges that it will take to get you well.  The Affordable Care Act has obliterated the pre-existing condition barrier to getting health insurance (in the individual market), so you could go out and get insurance, if you could find a willing insurer in your state and could pay the monthly premium and the deductible.  However, in your financial situation that’s iffy.  Perhaps your better option would have been to plan ahead to buy health insurance before you got sick.

From Jeff’s perspective you acted imprudently when you failed to purchase insurance, so the fact that you are now confronted with a severe illness and bankruptcy-inducing medical bills is your own fault. Jeff’s response to you: “I tell you to buy health insurance or don’t buy health insurance – it’s none of my business what you do with your own money.  But if you don’t buy insurance, you should not expect society, with the force of government behind it, to backstop your imprudence of not planning ahead for your care.” Here again, it’s not difficult to feel the force of Jeff’s logic. Why should others be forced to pick up your tab?  Here is my two point reply:

(1) Jeff’s claim that you should have purchased insurance when you had the chance assumes that you (a) were in a financial position to actually afford insurance, and (b) were able to find an insurance provider that was willing to cover you.  The assertion that you ought to purchase insurance is an empty one if the cost of coverage is out of reach for you, or if no healthcare provider is willing to cover the condition for which you are seeking care.  The ACA strives to make health insurance more affordable, though with varying degrees of success, as critics have noted.  The ACA does this by providing income-based subsidies to help cover the cost of insurance. It also ensures access to coverage by prohibiting providers from denying coverage on the basis of pre-existing conditions.  Jeff needs to spell out more clearly his own moral assessment of these subsidies and this prohibition.  He cannot assume that his alternative will make insurance more accessible and affordable. I’d like to hear if Jeff is okay with using taxpayer funds to subsidize the cost of insurance so that people like you (the reader) can get the insurance that Jeff says you ought to have.

(2) Let me put in the most blunt way what I think Jeff is saying to you in the scenario above: “If you are the unfortunate victim who is afflicted with stage II cancer but who is financially unable to pay for the readily available treatment for your disease, it is morally acceptable to deny you access to this treatment.  However, when your cancer makes you so sick that you are in an emergency health crisis and must visit an emergency ward for your cancer to be treated, we will mandate that the hospital must provide care to you at that point.” This seems to me to accurately reflect the logic of Jeff’s position, which leans heavily on the emergent/non-emergent distinction.  Here I think there are good practical reasons for rejecting this distinction.  First of all, caring for non-emergent illnesses–or better yet preventative care–is less expensive than the care that we must provide when diseases advance to a later stage.   If you are afflicted with cancer, don’t I, cost-conscious healthcare consumer that I am, want your cancer to be treated at an earlier stage before you need the much more expensive care that will be demanded when you are in a full-blown health crisis? Second, a more comprehensive system of insurance creates incentives for people to make good healthcare choices (e.g. visiting their doctor every year for a checkup that will allow detection of emergent illnesses) that also reduces the overall cost of healthcare. If you are struggling to scrape by on your yearly income you are much more likely to visit a doctor when your insurance subsidizes the cost of the preventative care the doctor provides.  You are less likely to do so if you must pay the full cost out of pocket. Third, Jeff’s distinction between emergent and non-emergent care is difficult to apply to a range of illness that, while not immediately life threatening, are chronically debilitating but treatable.  Is Crohn’s Disease an emergent or non-emergent illness?  If emergent, does this mean that Jeff is committed to ensuring that victims of this disease are able to receive the lifetime of care that their chronic illness will require?  If non-emergent, then is this person much like the cancer patient above, obligated to purchase insurance in a system that insures that coverage for her will be affordable?  How does Jeff suggest we make healthcare affordable for you when you are that person in need of a lifetime of care?

Let’s close by returning full circle to Jeff’s qualms about forced transactions. While to this point I have defended the individual mandate, I feel the need to come clean, for I actually share some of Jeff’s concerns about the unseemliness of forcing consumers to buy goods and services from other private parties.  I continue to defend the mandate largely because I feel the need to bow to the reality of the present.  Whether we like it our not, our history has contributed to the circumstance that we are in, for we are a community in which access to healthcare for most of us is dictated by our relationship with a for-profit insurance provider.  This is not the system I would have chosen to create, but it is the one we are in.  The mandate is an imperfect way of trying to realize the aims of a healthcare system given that reality.  I’d be just as happy to lock arms with Jeff and march against the mandate if the alternative were a system that is more socialized, closer to what we see in other industrial democracies around the world.  The practicalities of shifting from a network of private for-profit insurance providers to any of the range of socialized alternatives seem impossible on their face in the current political moment.  Given the choice between the individual mandate and the United Kingdom’s National Health Service, I’ll choose the NHS. But my guess is Jeff would reject this as just another healthcare system that relies too heavily on forced transactions. In this respect the United States is in good company.

Round 6: On Separating Insurance for Emergencies and for Everything Else

This is The Teacher’s third essay, and the sixth overall, in the debate between him and Vic McCracken over the morality of the individual insurance mandate found in the Affordable Care Act.

This essay was first posted to christianethicsbites, Vic’s blog, here.

Thanks, again, to Vic for participating with me in this discussion.  Slowly but surely, we’re making our points, hopefully clear enough for our readers.

When I read Vic’s response from January 30th, I had a Homer Simpson moment.  What’s a Homer Simpson moment, you ask?  Well, I did not down a couple of doughnuts.  I did not yell at my versions of Bart and Lisa.  Rather, I exclaimed a sharp “D’oh!” when I realized the trap that had sprung about me.  But, I really shouldn’t say that I walked into a trap, for that would imply that Vic cunningly laid it for me.  Vic is far too congenial to take advantage of my oversight like that.  No, I set it for myself.  Rather, his response should be recognized for what it is – a good faith argument in the discussion we’re having using the only “grist” for his mill that he can use – my own words.

In my last blog post I wrote that the EMTALA coverage mandate – that everyone gets “stabilizing treatment” for an “emergency medical conditions” when they “come to the emergency department” can only be prudentially tied to the individual mandate found in the Affordable Care Act.  I then (unwittingly) backtracked and claimed that there was a moral tie between the EMTALA mandate and the individual insurance mandate.

That said, I do want to embellish my January 29th statement that Vic quoted in his January 30th response.  I think these nuances will more accurately reveal my position regarding health insurance and EMTALA.

1. I do believe that if a person faces the contingency of using a hospital or doctor’s emergency services, he should have some way of fully satisfying (paying) the bills that will follow from that emergency encounter.  In the end, everyone faces the contingency of using the hospital or doctor’s emergency services.

1.a.  That is, indeed, a moral claim, as I believe it is wrong to forcibly socialize the costs associated with this person’s (let’s call him “you” for purposes of our discussion) time in the ER.  In other words, if you don’t have some mechanism, whether a check or health insurance or some combinations of the two, to satisfy the bills associated with your emergency care, then those costs eventually will be spread to the rest of us in one of two main ways: higher prices charged by the hospital and/or doctors who treat you and higher health insurance premiums.

In essence, this point says that you should desire to plan ahead for your emergent health care contingencies because of what lies ahead for your fellows if you don’t.  When you go to the emergency room, you will be engaging in an ad hoc, forced transaction.  And both sides of the transaction use “force,” in a sense: the patient will demand the hospital and doctor’s services through the mandate of EMTALA, and the hospital and doctor “force” the financial terms of treatment on the patient.  [N.B.: I’m hoping that our debate will eventually focus on how those forced financial terms –  prices  charged by hospitals and some doctors – bear no reasonable relation to their production costs.  I think Vic and I will share some common ground on this topic.]

Yes, it is true that some patients never pay a cent toward their emergent care.  But, that is the exception and not the rule of contemporary healthcare.  Many, if not most, patients pay something towards their care.  Importantly, hospitals and doctors are keen to make sure that they get paid.  As a culture, we have long since left behind the idea that hospitals are true charities – entities that provide their services to the public for free.  Instead, America has substituted tax-exemption for charity.  That a hospital has tax-exempt status under Section 501(c)(3) of the Internal Revenue Code and similar state and local tax laws means only that the executives, employees, and trustees of the hospital cannot receive a share of the hospital’s operating profits.  It does not mean that the hospital doesn’t charge for its services.  Many times, those charges, as reflected on the hospital’s chargemaster, are not rationally related to what it costs to provide the good or service to the patient.  In other words, often times patients (or their insurers) are charged many times more than the “real” cost for a good or service.  Woe betide the person who does not have health insurance to front these charges.  Even then, some insurance do not fully satisfy the charges levied by hospitals or doctors and leave the patient to pay the rest.

2. Even so, one of Vic’s unstated conclusions in his last essay is: just as it is a moral imperative to procure health insurance to meet one’s health emergencies, it is equally morally imperative to have insurance for every other health issue that a person might face. Now, importantly, Vic might say that this raises a practical distinction without a difference.  In other words, if one has health insurance for emergencies then one has it for every other health issue that a person faces.  And that’s true.  That’s how health insurance works in America.  And that leads to one of the main reasons that health insurance and health prices are so distorted today is that we tend to use our (good) health insurance for everything – for the routine trip to the family doctor so she can see about our coughs and when we are taken to the hospital because we’re run over by the bus.  We use most every other insurance we carry – homeowner’s insurance and auto insurance to name two example – only when something truly terrible happens, like a house fire or serious car wreck.  On the other hand, we tend to use health insurance for everything after we meet our deductibles.

It’s this second moral imperative that I want to quibble with.  EMTALA is built on the premise that it is morally wrong, even indecent, to let one of our fellows to bleed out in the street.  Can we say, though, that it is equally indecent to let a person suffer without a way to pay for a slow-growing cancer or stable gallbladder disease or high-blood pressure or anything else that is serious, yet not emergent?  I don’t think so.  In my opinion it is unfortunate that the health insurance that the individual mandate covers includes one type of insurance for emergency care and for more routine, non-emergent care.  Yes, it is true that emergency treatment is a forced transaction; however, there should not (there’s that moral language again!) be a preference for forced transactions in non-emergent situations.  Forced transactions violate one of the core principles of Anglo-American contract law: freedom of contract. Parties to a contract should be perfectly free to enter (and exit) the contract at will.  I can choose to enter into a transaction with you or not.  Likewise, you can choose to enter into a transaction with me or not.  What makes contracts so wonderful in a capitalistic society is that that the contracting parties have thought ahead of time about the benefits and burdens they will accrue by engaging in the transaction, and after deliberation, they do it anyway because they think on balance the transaction will help them.  [N.B.: I’m in my tenth year of teaching the first year course in Contract Law to my home institution’s law students.  I’ve thought a lot about the moral implications of the “freedom of contract” principle.]

The scenario would go something like this: you have pain in your abdomen.  You go see your doctor.  She orders some tests, and after interpreting the tests sends you to a specialist.  The specialist orders more sensitive tests herself, then sits you down and tells you that you have a Stage II cancer growing in your belly.  You’ll need a combination of surgery, chemotherapy, and radiation therapy to hope to get all of it.  You have no health insurance.  In fact, you’ve had to exhaust your meager savings and then go hat in hand to your in-laws to scrape up enough money to see the doctors and get their fancy tests.  You’re in a pickle.  By yourself, you have no way to pay the hundreds of thousands of dollars in hospital, doctor, pharmacy, and other outpatient charges that it will take to get you well.  The Affordable Care Act has obliterated the pre-existing condition barrier to getting health insurance (in the individual market), so you could go out and get insurance, if you could find a willing insurer in your state and could pay the monthly premium and the deductible.  However, in your financial situation that’s iffy.  Perhaps your better option would have been to plan ahead to buy health insurance before you got sick.

So, you don’t have health insurance.  But that was the choice you made.  The individual insurance mandate tells you to buy insurance or pay a penalty (tax).  What the individual mandate really tells you is to buy health insurance (something good for you) or the government will tax you.  The individual mandate is a paternalistic impulse backed up with government’s monopoly of force.  On the other hand, I tell you to buy health insurance or don’t buy health insurance – it’s none of my business what you do with your own money.  But if you don’t buy insurance, you should not expect society, with the force of government behind it, to backstop your imprudence of not planning ahead for your care.

Well, this blog post is getting long in the tooth.  So, let me wrap it up.  Here is my bottom line: (1) I agree with the moral imperative of EMTALA that, as a society, we should not let a person die outside the ER’s front door.  (2) I also think that it is wrong for a person not to have some sort of way to pay for the inevitability of finding himself in some sort of emergent situation, because if the patient doesn’t pay for it, society will in the form of higher hospital and/or physician charges and/or higher insurance premiums.  (3) Perhaps the easiest way to rid myself of this conundrum is through the vehicle of the individual mandate.  (4) I’m more ambivalent about forcing people, through things like Congress’s individual mandate, to buy insurance to pay for their routine, yet non-emergent healthcare.  People have the freedom to do what they want with their money, and if they don’t want to plan ahead for their healthcare, that’s their choice.  By the same token, society should not have to bail them out when they get a devastating diagnosis.

I fully realize that an obvious criticism of my distinction between emergent and non-emergent healthcare is this: the patient with the Stage II cancer diagnosis will eventually become emergent, so just agree to the individual mandate now and be done with it.  While that argument recognizes that many (most?) healthcare conditions are on a continuum from manageable to quite severe, it does not fully consider the distaste that conservatives, classical liberals, and libertarians have for “forced associations”.  There is a deep and abiding reticence, even abhorrence, in these groups for being told what to do, with whom they should/must make contracts, and how they should/must spend their money.  [I thank Roger PIlon of the Cato Institute for the phrase “forced associations”.  He spoke at Faulkner Law on January 31st.  I asked him the question about the individual mandate for emergent patients.  He and I had a nice discussion in which he used the phrase “forced associations”.  You can see that I have used the phrase “forced transactions”.  They are the same thing, I think.  This blog post is, in part, working out my thoughts after my brief discussion with Dr. Pilon.]

Perhaps, in the end, our discussion about insurance mandates and healthcare must come down to a national moral consensus on values.  If the individual mandate is to be repealed by this Congress and President Trump, then the pre-existing coverage mandate will also have to be repealed.  We will then have to become comfortable with an idea voiced by Roger Pilon: we will have to be OK with people dying.  If we’re OK with some people dying, then freedom of contract and the person’s sovereign choices can be fully vindicated.  If we’re not OK as a society with persons dying, then the individual mandate with societal backstops will be kept.

Round 5 of the Mandate Debate: McCracken on Morality and Prudence

Below you will find Round Five of the debate that Vic McCracken and I are having on the individual insurance mandate found in the Affordable Care Act.

You may also find this essay on Vic’s blog, here:

This essay is from Vic:

Once again, my thanks to Jeff for participating in this conversation. I’m going to focus my attention here on this specific comment from Jeff’s last post:

Nevertheless, EMTALA and the individual mandate may be connected, not for moral reasons, but for merely prudential reasons.

I think Jeff is wrong. My goal in this post is to explain why I think this is so and why I believe acknowledging the moral import of the mandate is important. Let’s first situate this claim in context. Jeff and I agree that there is a solid moral and prudential basis for EMTALA. I appreciate Jeff’s apt description of EMTALA as a “compelled Good Samaritan” mandate.  Remember that Jeff and I support this mandate on moral grounds.  At this point Jeff parts company with the parallel that I draw between EMTALA (a “supply-side” mandate) and the individual mandate under Obamacare (a “demand-side” mandate placed on patients, not providers).  In his view, the individual mandate if it is justifiable at all is so only on “prudential grounds.” The moral logic that we both embrace for compelling emergency care providers to provide uncompensated care does not apply to patients who are the recipients of that care, or so he argues.

I share Jeff’s conviction that prudential reasons offer one basis for justifying the insurance mandate, though one should notice that Jeff himself is not persuaded by the prudential argument. He describes the ACA as a “disaster” because of the unaffordability of the insurance that individuals are required to buy. I know that this is one of Jeff’s major concerns, and not an unreasonable concern to have.  My anticipation of this concern is what prompted my foray last week onto the healthcare.gov website to scope out insurance options for my imaginary family of 4, details of which can be found here.  However, I think Jeff overlooks something basic about the moral connection between EMTALA and the individual mandate.

Let’s rephrase the moral logic of EMTALA this way:

It is morally permissible to use the power of the state to compel private healthcare providers to provide emergency health services, even when these providers know that they will not be compensated for this care.

Based on what Jeff has said so far, he affirms this, as do I.  But Jeff does not embrace the moral logic that would mandate that individuals purchase insurance; he sees this as a “demand-side”mandate that does not parallel the logic behind EMTALA. But if this is so then I find the conclusion of Jeff’s latest blog post quite curious, for Jeff himself frames the outcome of the EMTALA mandate absent the individual mandate in explicitly moral terms:

What if the prototypical 28-year old, who hasn’t bought health insurance, because “she never gets sick” and because “the government can’t tell her what to do” gets run over by a bus, and it’s her fault? She’ll accumulate hundreds of thousands of dollars, at least, in medical bills, and if she doesn’t have a six figure net worth, those bills will likely be eaten by the hospital. That’s hardly a just outcome. So, yes, in the abstract, our hypothetical 28-year old should (an “ought,” a moral statement) procure health insurance so as not to be an unnecessary burden on her fellows in the community, even for contingencies (like getting run over by a bus or developing cancer) that she finds highly improbable.

If the logic behind the individual mandate is, as Jeff describes, “merely prudential,” then how are we to make sense of Jeff’s own assessment that forcing a hospital to eat the expenses of the care it provides is “hardly a just outcome?” The moral logic of these supply-side and demand-side mandates is more tightly woven than Jeff’s last post would suggest, and his own language illustrates how this is so. The 28-year old who lacks the foresight to purchase health insurance, or who would simply prefer to spend his hard-earned money on a convertible instead of health coverage, burdens the hospital that will be required to care for him when he crashes the convertible. The 28-year old also burdens the rest of us, indirectly escalating the cost of healthcare. If we already agree it is morally permissible to use the power of the state to compel hospitals to provide uncompensated emergency care to the 28-year old, why should we not deem it just as morally permissible to use this same power to compel the 28-year old to cover himself in the event of an emergency?  

To the extent that conservatives have stereotypically been the forceful defenders of business owners, entrepeneurs, and other actors on the “supply-side” of market exchanges, I find myself in the strangely curious position of being the one who is drawing attention to the disproportionate moral weight being borne by healthcare providers in a system that mandates that they provide uncompensated care but does not mandate that consumers take steps to minimize these costs. The moral logic of the individual mandate recognizes the costs of healthcare as social costs that are borne by communities, not merely individuals.  The uncompensated care that I receive from the hospital is borne by other members of the community, albeit indirectly. My choice to not purchase health coverage does not affect me alone; it affects every other healthcare consumer.  For this reason, there are sound moralreasons to expect me to live up to my responsibilities to other members of our community. In a healthcare system, no person is an island. My decision to refuse insurance affects you.

As for whether or not we treat the financial mechanisms that compels individuals to purchase insurance as a “penalty” (as the law was initially intended) or as a “tax” (as SCOTUS declared it to be), Jeff is correct that I find the distinction to be moot. Whether or not a consumer experiences the government stick as a “penalty” or a “tax,” the mandate survives, and there are sound reasons for us to agree that it should remain so, as long as health insurance is reasonably accessible and affordable for every member of the community. The last qualifier is absolutely critical. Jeff closes his post by arguing that the ACA mandates that ordinary Americans purchase insurance that they cannot afford to buy.  If Jeff is correct, then I agree with him that there are sound prudential and moral objections to be raised of the individual mandate. As Immanuel Kant reminds us, ought implies can. To insist that individuals have the moral obligation to do the impossible is irrational; thus, Jeff correctly draws our attention to this question: is the health insurance that individuals are required to buy affordable? While we may disagree about the means necessary to assure access and affordability, this shared goal provides a path forward for our conversation.

The Teacher on Mandates and Personal Responsibility

By my count, the following essay is Round Four in a debate that Vic McCracken and I are having about the moral and practical issues involved with having mandates to purchase health insurance.

Vic’s second essay (Round Three) may be found on his blog, christianethicsbites, here, and on this blog, here.

Now, for Round Four, my latest response to Vic.  It may be found on Vic’s blog here:

It’s great to continue this conversation with Vic. It’s always a treat to discuss EMTALA, my very favorite health law statute.

With that said, let’s get to the heart of Vic’s argument. In the middle of his last post, Vic said that “Jeff and I agree that this [EMTALA] is an example of a legal mandate that we ought to have.” I agree with this assumption by Vic. I concur with him that EMTALA reflects a broad bipartisan commitment to a moral judgment – namely that it is indecent for a community to let its most health-compromised members die, or suffer serious bodily harm in their most dire hour of need. Why did Congress make this decision in 1986, and can it be compared with the latent assumptions found in the Affordable Care Act, particularly about the individual mandate? (Whoops. I said that EMTALA was passed in 1989 in my prior post. It was 1986.)

EMTALA was enacted because emergency departments across the country were not doing their jobs. They were “turfing” “bums” and others who were unlikely to pay their hospital bills. An ER might perform a “wallet biopsy” on a patient to make sure that he had insurance or otherwise had the resources necessary to pay his bill, and if he didn’t, then out he went. This was scandalous. It was anathema to the general mission of emergency departments all across the nation – to staunch the flow of blood, to patch up the person in a car wreck, to revive the heart attack victim. In other words, EMTALA calls on hospital emergency departments, particularly those subsidized the federal Medicare and Medicaid programs, to do their jobs and worry about how to pay for the care they give later. In essence, EMTALA is a kind of “compelled Good Samaritan” mandate. If the hospital takes the government’s goodies (participation in the Medicare program), then it must actually do its job and provide succor for the sickest in the community. Providing such succor and care is the essence of a hospital. It constitutes the hospital’s core identity.

At this point in his essay, Vic does something interesting. He takes our common ground, our shared appreciation of the mandate in EMTALA that hospitals and physicians provide emergency care, and he extends it past its breaking point. EMTALA is about what the healthcare supplyside must do. It must provide the most basic medical care to those in need. EMTALA has nothing to say about what the healthcare demand-side – the patient – must do. Nevertheless, Vic tries to connect the mandate in EMTALA to the individual mandate found in the Affordable Care Act. I think the connection, merely asserted, is inapt.

Nevertheless, EMTALA and the individual mandate may be connected, not for moral reasons, but for merely prudential reasons. It’s a prudent thing for the government to require you to have health insurance for those times, for example, when emergency healthcare might save your life. I sure was glad I had great health insurance when my August 2016 ambulance ride + ER visit + impatient hospital admission totaled over $14,000. Other people in similar situations will be glad that they have health insurance so that they aren’t saddled with unmanageable bills. Generally speaking, it’s a good idea that hospitals have a way to satisfy the expenses they rack up, and the only way to do this is through the individual mandate.

So, what about the individual mandate on its own terms? Vic says that “the standard conservative criticism” of the individual mandate is that private citizens should not be forced to purchase a product from a private company. And I suppose that is true as far as it goes. But, it’s more than “a standard conservative criticism,” I think. As the Supreme Court found in National Federation of Independent Business v. Sebelius, the criticism is not merely conservative, but it is rather constitutional. Therefore, the criticism implicates our most cherished ideals and political philosophical commitments about the proper role and scope of government. In the NFIB case, the Court held that the individual mandate was an improper use of Congress’s power under the Commerce and Necessary and Proper Clauses, as found in Article I of the United States Constitution. Congress can do things like regulate railroad rates between states, but it can’t affirmatively force Americans to buy anything, including health insurance (at least under the Commerce Clause). However, the Court also held that if a person does not do something, like have health insurance, he can be assessed a tax.

In the end, the individual mandate survives. But it is a softer, more indirect mandate. It is a mandate representing the sovereign prerogative of the American people to choose how to spend their money – either on health insurance or an a tax payable to the U.S. Treasury. Some (maybe even Vic) might claim that, because the mandate has survived, Americans are faced with a distinction without a difference – they are still forced to spend money. I think it can be viewed in a slightly different way. There are all sorts of incentives that Congress has placed in the federal tax code forcing me to choose to how to spend my money. Take, for example, the itemized deduction that a taxpayer gets for contributing to a qualified charity. You can bet that I’ve thought a time or two as the collection plate is passed at church that I’ll be able to take a nice chunk of my contribution off my return come tax time. Similarly, I and every other adult American, make a choice whether to spend my money buying health insurance or paying a tax to Uncle Sam.

Let me say a word or two about Vic’s coupling of the individual mandate to a sense of personal responsibility. I’m all for personal responsibility when it comes to a person’s healthcare. In fact, I wrote a law review article, published shortly after the passage of the Affordable Care Act, that ties Medicare and Medicaid patients with chronic diseases to a responsibility to get their health right or be kicked off their publicly-funded benefits! Needless to say, at an earlier presentation of this paper at a conference at Marquette University, I did not receive a ringing endorsement of my ideas!

I am a fan of personal responsibility. I think that, all things considered, a person should take care of himself and his family and should try not to depend on charity or the government to do what he can do himself. So, if the individual mandate represents the quintessence of personal responsibility, then so be it. You’ll never find me mimicking a standard ultra-libertarian argument that the sovereign individual should be free from most all pressures, restrains, or orders from the government. What if the prototypical 28-year old, who hasn’t bought health insurance, because “she never gets sick” and because “the government can’t tell her what to do” get’s run over by a bus, and it’s her fault? She’ll accumulate hundreds of thousands of dollars, at least, in medical bills, and if she doesn’t have a six figure net worth, those bills will likely be eaten by the hospital. That’s hardly a just outcome. So, yes, in the abstract, our hypothetical 28-year old should (an “ought,” a moral statement) procure health insurance so as not to be an unnecessary burden on her fellows in the community, even for contingencies (like getting run over by a bus or developing cancer) that she finds to be highly improbable.

This does not mean, however, that, as a matter of policy, I endorse the Affordable Care Act as a whole with the individual mandate in it. It’s beyond the scope of this essay, but I have concluded that, as implemented, the ACA is a disaster, because ordinary Americans can’t afford the insurance that the statute mandates they buy. But, that essay is for a different day.

EMTALA and the Limits of Mandates? Vic McCracken Responds

Below is the second of Vic McCracken‘s essays to our ongoing discussion of mandates to purchase health insurance.  Vic’s essay was originally published on his blog, christianethicsbites, here.

Vic is responding to my essay, which may be found on this blog, here, or on Vic’s blog, here.

Many thanks to Jeff for his generous response and his participation in this conversation. Having read Jeff’s first post, I’m uncertain whether or not to call our electronic exchange a “debate.” How far apart are we really? Jeff and I agree that we want a healthcare system that enables people to get the care that they need, admitting that moderate scarcity forces us to grapple with what is possible given these limits. As Jeff says, “Common human decency, I think, demands that everyone have at least some of the care that they require.” I like this, principally because Jeff’s claim describes this commitment in explicitly moral terms.  To have a healthcare system that creates substantial obstacles that inhibit access to care is indecent.

Of course, Jeff observes that this moral demand has been embodied in American law at least since 1989.  I was really excited when reading Jeff’s first blog post that he chose the Emergency Medical Treatment and Active Labor Act (EMTALA) as an example to illustrate this point. In my bioethics course I often use EMTALA as an example of how laws are the embodiment of the moral commitments of communities. Jeff and I, and most Americans I would argue, believe that to deny emergency care to an accident victim who is unable to pay for the care is indecent.  It’s something that emergency care providers should not do.  For this reason, EMTALA coerces emergency care providers, mandating that they must

  • provide a medical screening exam to determine whether or not a patient has symptoms consistent with an emergency medical condition (EMC).
  • provide treatment to patients suffering from an EMC up to the point when the patient has been stabilized.
  • provide transfer to another emergency care provider in the event that they lack the capacity to treat the patient.

Hospitals may do credit checks and may seek payment from patients who are uninsured, but they may not deny access to emergency care if they discover that the patient is uninsured or has bad credit. They also may not provide lower quality healthcare to a patient who they know is unable to pay for the care.

Emergency care providers are well aware that Jeff’s imaginary “bum” will never pay for the care that he receives.  Jeff correctly observes that EMTALA mandates that hospitals provide care but does guarantee that they will be compensated for it. This feature of the law is what gives rise to the “free rider” problem. If I know that a hospital is legally obligated to provide care to me in the event of an emergency, why not dispense with insurance altogether confident that the law will force hospitals to provide care that I won’t be able to pay for?  Hospitals bear the financial burden of this problem most directly.  A December 2016 report from the American Hospital Association notes that American hospitals have provided more than $538 billion in uncompensated care since 2000. Those of us who pay for health insurance bear this cost indirectly as well in the form of higher healthcare costs and higher insurance premiums.

Rather than digging more deeply into the details of EMTALA, I want to step back and extend from where Jeff and I agree to make a larger point about where we may disagree.   If I am reading Jeff correctly, he and I agree that having a “last line of defense” like EMTALA is a good thing. Jeff is correct that I don’t think EMTALA by itself sufficiently describes the conditions of care that I would hope for in a just healthcare system. Surely proper access to care  entail more than that I am able to go to the hospital when I  am so sick that I am facing imminent peril. There are also sound economic reasons for wanting something more robust.  Preventative care is less expensive than emergency care, after all; setting aside the moral question, shouldn’t we all prefer a system that allows easier access to high quality preventative care that will help reduce the need for expensive emergency care?

But setting this aside, let’s return to the moment to this point: EMTALA is a good example of a government mandate that coerces healthcare providers, forcing them to provide care, some of which will go uncompensated.  As Jeff well describes there are good moral reasons for mandating that hospitals provide emergency care, and there was bipartisan political consensus that led to this law’s passage in the 1980s. EMTALA was signed into law by President Ronald Reagan after making its way through a Democratic House and Republican Senate. Jeff and I agree that this is an example of a legal mandate that we ought to have. To not have this last line of defense would be indecent.

Now consider the current debate about the individual mandate under Obamacare.  The Affordable Care Act mandates that every American have health coverage either through an employer, Medicare, Medicaid, or through a subsidized private insurance plan. What about this mandate?  The standard conservative criticism is that it is wrong for the state to mandate that individuals purchase a product (i.e. a health insurance policy) from a private company. Jeff can speak for himself here, but I gather that he himself is critical of the individual mandate on these, and perhaps other, grounds. But this is the point: to the extent that conservatives are already on board with a coercive government mandate applied to emergency care providers (i.e. EMTALA), it isn’t enough to simply say that coercing people to purchase insurance is morally wrong. One needs to explain why this particular mandate is any less defensible than the mandate that hospitals provide emergency care.

But here I can think of many reasons why an individual insurance mandate is defensible in a community like ours that embraces the moral logic behind EMTALA.  The most obvious reasons are financial ones: if the EMTALA mandate gives rise to the free rider problem, an individual mandate is one way to ensure that there are fewer people receiving uncompensated care. An individual mandate also insures that a system that mandates health insurance providers provide coverage to every person (another coercive mandate) has a large enough pool of healthy consumers paying more than they are taking from the system, essential for a stable insurance market.

Beyond these financial reasons if one is looking for an eloquent and compelling moral defense of the individual insurance mandate, one need look only as far as the conservative policy think-tank The Heritage Foundation. In 1989, Stuart Butler, long-time Director of the Center for Policy Innovation at the foundation wrote a position paper defending the idea of an individual insurance mandate in explicitly moral terms (I’ll highlight the relevant portions in bold):

Many states now require passengers in automobiles to wear seatbelts for their own protection. Many others require anybody driving a care to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement.

This mandate is based on two important principles. First, that health care protection is a responsibility of individuals, not businesses. Thus to the extent that anybody should be required to provide coverage to a family, the household mandate assumes that it is the family that carries the first responsibility. Second, it assumes that there is an implicit contract between households and society, based on the notion that health insurance is not like other forms of insurance protection. If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate but society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, American will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services–even if that means more prudent citizens end up paying the tab.

A mandate on individuals recognizes this implicit contract. Society does feel a moral obligation to insure that its citizens do not suffer from the unavailability of health care. But on the other hand, each household has the obligation, to the extent it is able, to avoid placing demands on society by protecting itself. 

Notice Stuart’s appeals to individual responsibility, “the implicit contract between households and society” that provides moral justification for a mandate.  As long as we are in a society that requires hospitals to provide care in moments of emergency, Stuart’s point is that members of our community have a moral obligation to avoid burdening other citizens when we are the ones in need of care.

Much more to be said here, but this post has gotten long.  Truth be told, this discussion about the individual insurance mandate may become moot.  Recent reports indicate that President Trump may not enforce the individual mandate, though he is inclined to keep the provisions mandating that insurers provide coverage without respect to preexisting conditions. Jeff well knows that this policy combination is a recipe for disaster.  That’s for another post…

Responding to Vic McCracken: EMTALA and Decency

Vic McCracken, a friend of the Teacher and a Christian ethicist at Abilene Christian University, and I are debating the moral questions surrounding health insurance and coverage for health expenses.  Vic’s first salvo in our debate may be found at his blog, christianethicsbites,  here and on this blog, here.

Here is my response, which may also be found at christianethicsbites, here:

It’s a true pleasure and challenge (!!) to have this virtual conversation with my friend, Vic McCracken. Vic is making a good name for himself in the theological ethics world. So, it’s a treat to have a discussion with him as he relaunches his blog and as I launch mine. This conversation with Vic will be among the first of several posts on my new blog, “A Teacher of the Law”. Please look for our thoughts, posted here, to be posted there as well (www.teacherofthelaw.com).

Now to the task at hand. In my opinion, it is impossible to fully deal with Vic’s first bullet point in a blog-length essay. Therefore, I will take up one contemporary example of his premise. I believe that that a more fulsome answer to Vic’s first premise is found in wrestling with his second bullet point. That’s for a subsequent blog post.

OK, with those preliminaries out of the way, let me offer thoughts on the first of Vic’s “big ticket” bullet points:

Yes, I affirm, in general, that we (Vic and I) want members of our community to be able to receive the healthcare that they need. Common human decency, I think, demands that everyone have at least some of the care they require. I’ve had some health problems over the past few months, and I’ve said the old adage “if you don’t have your health, you don’t have anything,” many times over that span. I’ve received so much from the healthcare system, that I would have been distressed not to have had the ability to pay for the good care I received. I want everyone to have the peace of mind that I’ve had while shuttling between hospitals and doctors visits. And that is why I can agree with President Trump that we don’t want people “dying on the streets”. The president should know, though, that his backstop (people not dying in the streets) has been codified federal policy since 1989. The Emergency Medical Treatment and Active Labor Act (EMTALA) allows a person a “medical screening exam,” who, in the words of the law, “comes to the emergency department.” If an “emergency medical condition” is discovered, then that person is due, under the law, “stabilizing treatment,” which could be quite extensive, and could include surgery and inpatient hospitalization, just to name two examples.

In a sense, and only in a sense, America already has a form of universal care, available to rich or poor, those with “Cadillac” health insurance plans and to those who have no health insurance at all. To wit: on last semester’s exam in my Health Law class, I asked my students to discuss the federal and common law implications of an emergency room physician throwing a “disheveled bum,” as I described him on the exam, out of her ER. I wanted my students to be outraged that a physician, ostensibly committed to the ideals of the Hippocratic Oath, could be so callous and mean. Clearly, my hypothetical ER doc violated the EMTALA law and subjected herself and her hospital to significant legal and reputational liability. We don’t hear much of hospitals “turfing” “bums” who don’t have health insurance, because such blatant violations of the law put the offending hospital’s Medicare (yet another system of universal care) participation contract in jeopardy. Medicare is the mother’s milk of any full-service hospital. If a hospital loses its Medicare participation agreement, that’ll be the day it will shutter its doors.

However, we must recognize EMTALA for what it is: it mandates access but not financial coverage for healthcare goods and services. To be sure, the protections of EMTALA broke down for my bum, but they did not break down for me. What if the ER doc in my exam had given the bum loving care? Even after the first six years of the Affordable Care Act, the bum might not have procured health insurance, and if he’s living on the streets, he probably hasn’t. Thus, if he got care, the hospital likely would have had to eat his bill. Ironically, the hospital is more likely to sue the patient who has the resources to pay some, but not all of his bill. And that is probably the patient about whom Vic is most concerned.

Compare the bum and the working poor person with me. I’ve taken two ambulance rides and two other car rides to the ER in the past five years, and uniformly, I have received prompt, competent care. Importantly, I have excellent health insurance through my employer. I have the financial resources so that in none of those ER visits have I given a second thought to the deductibles I would later pay or the total cost of my hospital visits, which twice included overnight admissions.   The working poor, and even many middle-class Americans, do not have what I have.

Therefore, EMTALA serves as a last line of defense for Americans seeking healthcare, for the law requires that “stabilizing treatment” must be given regardless of the patient’s ability to pay. However, EMTALA does not create the conditions for care that Vic and those sympathetic to him would likely find sufficient. For that, we must make some very hard decisions with respect to Vic’s second bullet point concerning scarcity. More on that later.

 

 

On the Individual Mandate: A Debate with Vic McCracken

Is it ever morally defensible to force an American to purchase anything, including health insurance?  That’s a question that Dr. Vic McCracken and I have been trying to answer in a debate on his blog, christianethicsbites.  Vic is an Associate Professor of Theology and Ethics at Abilene Christian University in Abilene, Texas.  Vic graduated from Harding University in 1995.  He graduated with the Master of Divinity degree from ACU in 1999, and he received his Ph.D. in Theological Ethics from Emory University in 2008.

Vic is a friend of mine, and it’s a true pleasure to participate in this debate with him.  It’s a great way to launch this blog.

You may find Vic’s first blog post in this debate here on his blog.  It is also republished below:

I began this blog a few years back as a way of forcing myself to write regularly.  After an extended period of weekly blogging I got away from it, mainly to focus on my own academic writing.  Recently I’ve felt the pull to jump back onto my blog, in part because a college friend of mine, Jeff Hammond, has asked me about the possibility of collaborating in an online discussion on healthcare reform. Jeff is a law professor at Faulkner University who specializes in healthcare law. Jeff earned his law degree at Emory University  where I finished my PhD, so in addition to overlapping at our undergraduate alma mater we have some common connections in our graduate programs.  That said, Jeff is more conservative than I am on a variety of things, including healthcare and healthcare reform. This conversation is an opportunity for us to hash out our respective views. While we may not reach agreement I respect Jeff enough to know that I’ll learn something from the conversation.  Perhaps readers will as well.

So why healthcare? In many ways the topic recommends itself in the current political moment, where talks of healthcare reform and the repeal of Obamacare are front and center.  Rather than jumping into the political fray, I want to resist the temptation to offer a detailed exposition of the American healthcare system and focus instead on some broad principles that, I argue, offer some common ground for our conversation. I suspect that much of the sound and fury of the healthcare debate stems from differences over the merits of specific policies and programs, not these principles.  I’ll be interested to hear if Jeff agrees.

So to start the conversation, I suggest that amid our disagreements about healthcare policy there is substantial agreement about three moral principles that define the sort of healthcare system that all of us desire:

  •  We want members of our community to be able to receive the healthcare that they need. That is to say that all of us–conservative and liberal alike–desire a system in which people who need the care of a doctor are able to receive it. We don’t want people who, in the words of President Trump, are “dying on the streets.”
  • We want a system that is sustainable, that doesn’t collapse by promising things it cannot achieve. That is to say that all of us–conservative and liberal alike–agree that in a healthcare system defined by the problem of moderate scarcity it is impossibly utopian to promise everyone everything. There are limited resources, so we need a system that recognizes these limits and still strives to provide high quality healthcare.
  • We want a system that incentivizes good healthcare decisions. That is to say that all of us–conservative and liberal alike–agree that it is beneficial for all of us when healthcare providers and consumers have reasons to act in ways that encourage healthy habits and that reduce healthcare costs for all of us.

These three principles seem morally basic to me.  Jeff might suggest some revisions, or he might disagree. In many ways the direction of a conversation about healthcare will depend on whether or not we are arguing about first principles (i.e. if not the principles above, then what?) or about the mechanisms that best realize these principles in practice. If we agree, for example, that ensuring access to healthcare is a guiding principle of reform, then our debate is really about what reform plan best realizes this shared goal. Our conversation will be entirely different if we don’t agree that access to care is an important aim of a healthcare system or if either of us is indifferent to the problem of sustainability.

Note here that there is some tension between the first two principles.  We might all agree, for example, that access to care is an ideal aim for our healthcare system, and yet because no healthcare system can promise everyone everything (that is not sustainable) we need a system that can adjudicate the claims of consumers when there are conflicting needs for the same healthcare resources. What do you do when 16,000 people need liver transplants and there aren’t enough to go around? Or what do you do when the urgent needs of emergency patients outstrip the capacity of hospitals to provide important but non-life threatening hip replacement surgeries? These tensions are intrinsic to any healthcare system. Healthcare resources are not like air molecules.  They are limited, and these limits impact the ability of any healthcare system to provide the care that every person needs.

I’ve got much more to say on this, but I also have a lot of time and space in which to say it, so I’ll close out this blog post for now.  I look forward to Jeff’s response.

Welcome!

Hey folks!

Welcome to “A Teacher of the Law,” a blog about law, the intersection of law and religion, and health law and policy.

I’m Jeff Hammond, The Teacher.  I’m an Associate Professor of Law at Faulkner University, Thomas Goode Jones School of Law.  I’m in my tenth year of teaching law.  I received my B.A. degree from Harding University in 1997.  I received a Master of Theological Studies from the Candler School of Theology at Emory University, and  I received the Doctor of Laws degree from the Emory University School of Law, both in 2001.  After law school, I practiced in the area of health care law for almost six years.  I’m very glad to be a fellow of the Center for the Study of Law and Religion at Emory University, the sponsoring program of my two degrees from Emory.

I’m glad that you’ve joined me here.

“Woe to you teachers of the law…”  Matthew 23:13 (NIV)