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.
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 supply–side 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.