Health Care & Compulsion

President Barack Obama's signature on the heal...

President Barack Obama

The United States Supreme Court will soon be ruling on the constitutionality of the Affordable Care Act. This ruling will, of course, settle the legality of the matter-at least until it is challenged. While the constitutionality (or lack thereof) of the act is certainly interesting, my main interest as a philosopher is the ethics of the matter.

While the law is 2,400 pages long, I will just focus on the ethics of a key part, namely that the law requires people to purchase health care insurance. Opponents of the law assert that this is the first federal law that requires citizens to purchase a product and they typically assert  that this goes beyond the legitimate power of the state. Proponents of the law retort by arguing that the state is acting legitimately. As such, a key moral issue is whether or not the state has the right to compel citizens to buy a product in general and insurance in particular.

On the face of it, the idea that the state has a right to compel people to buy a product seems to be absurd-even when such a purchase would be a good idea. After all, buying and consuming fresh fruits and vegetables is a good idea, yet one would be hard pressed to present an argument in favor of compelling this by law (the Broccoli and Orange Act, perhaps).

To present a more substantial argument, I will begin by noting that I favor a a presumption in favor of liberty. That is, the burden of proof is upon the state to show that the intrusion on liberty is legitimately warranted. While spelling out the various conditions under which intrusion would be warranted goes beyond the scope of this essay, one obvious justification is that the intrusion prevents an individual or group from inflicting unjust harm onto others. Thus, the restrictions on murder, theft and defective products are warranted. Intrusion that are done merely for the good of a person would not be justified, at least if we follow John Stuart Mill’s classic arguments regarding liberty. After all, if I am sovereign over my self, then the state (and others) have no moral right to intrude on my actions when they impact only me. As such, while the state can justly prevent me from selling tainted broccoli, it would not seem warranted in compelling me to eat broccoli-despite the fact that doing so would be good for me. This line of reasoning, interestingly enough, would also forbid the state from making the use of marijuana illegal and would also make laws forbidding same sex marriage morally wrong since they impose on liberty solely to impose a specific religious/moral view rather than to prevent people from harming one another. In fact, the principle that the state cannot compel except to prevent harm would entail a host of libertarian positions on various issues-something that should be duly considered when using such a principle.

Of course, it could be argued that while the state has a right to compel people to not do various things even when they are not harmful to others, it does not have the right to compel people to take positive action. That is, the state can be justified in telling me what not to do, but it has no legitimate right to tell me what to do. As might be imagined, this approach is often taken by folks who want the state to compel people to not do various things (like smoke marijuana or marry someone of the same sex) but who are against this specific act.

While justifying specific acts of compulsion can be challenging, this approach does seem consistent. After all, the principle is that the state cannot compel taking action and can only compel people to not do things. As such, while the state can, for example, forbid abortion, it cannot morally  compel people to buy health insurance.

Naturally, if this principle is used to argue that forcing people to buy insurance is wrong, it must be applied consistently-namely that the state is wrong to compel action and it can only forbid. This would entail that compelling young men to sign up for selective service is wrong. It would also entail that compelling people to pay taxes is wrong. Forcing automakers to include seat belts, air bags, and brakes would also be wrong. Forcing women to undergo an ultrasound before getting an abortion would be wrong. So would forcing children to attend school. Compelling people to serve on a jury would also be wrong.  And so on. Naturally, this might have considerable appeal to some people, but this path would seem to take us into the realm of the absurd (although some, such as the anarchists, would say we are already there and doing this would take us out of the absurd).

The obvious counter is to insist on narrowing the principle from “the state has no moral right to compel” to “the state has no moral right to compel people to buy a specific product.” The challenge, of course, lies in justifying this principle. As might be imagined, the reply that “the state has not done this before, so doing it is wrong” is not a good argument. After all, the mere fact that something has not been done before is no indication of whether it is good, bad or indifferent. This sort of “reasoning” could be seen as a variant on the appeal to tradition fallacy, in that the idea is not that something is good because it is a tradition but that something is bad because it is not.

What, then, is needed is something that shows that the state lacks the legitimate authority to morally compel people to have health insurance while it does possess a right to compel people to do things. The challenge is to show a relevant difference between the insurance case and the other cases in which state compulsion is (allegedly) morally acceptable. The obvious thing to point to is that the state would be forcing people to buy a  product. However, the mere fact that this is different does not entail that it is a relevant difference that make this specific compulsion wrong. After all, the state does compel us to pay for Medicare, Medicaid and Social Security and is thus compelling us to buy what amounts to health and retirement insurance.

Naturally, it could be argued (as some have) that the state should not do this-that being forced to pay for Medicare, Medicaid and Social Security involves an unjust compulsion and thus the state should not do this. This view would allow someone to consistently oppose the Affordable Health Care Act’s compulsion to buy health insurance but at an obvious price-namely the need to be opposed to these three things.  As such, those who do not want to be rid of these things will need another line of attack.

The most fruitful one is that the the health care coverage is a private product rather than a state product. This, of course, does provide a significant difference between the state’s “products” and health care coverage. Of course, it does not provide an argument against the state compelling people to pay into a national health care insurance (as it does with the current national health care insurances, Medicare and Medicaid). As such, focusing on the fact that the product is a private one would seem to help shore up the view that the state should instead compel people to buy national health care-after all, this seems to be well within the legitimate power of the state (at least as it is currently conceived).

Nations other than the United States do, of course, have national health care. Of course, this sort of thing is presented as a worse demon than forcing people to buy private insurance. But this is a matter for another time.

 

 

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11 Comments.

  1. “key moral issue is whether or not the state has the right to compel citizens to buy a product in general and *X* in particular.”

    How about education? The alternative of home health insurance and advanced home health care has not been widely discussed yet.

  2. I don’t actually have anything against this law, given the circumstances. As I said on another thread, I’d vote for it (though I’d prefer a proper public health scheme as in most other advanced countries, if I were an American voter).

    Still, I’m not very persuaded by this bit: This line of reasoning, interestingly enough, would also forbid the state from making the use of marijuana illegal and would also make laws forbidding same sex marriage morally wrong since they impose on liberty solely to impose a specific religious/moral view rather than to prevent people from harming one another. In fact, the principle that the state cannot compel except to prevent harm would entail a host of libertarian positions on various issues-something that should be duly considered when using such a principle.

    The thing is, I actually do oppose laws making such things as marijuana illegal. OTOH, I’m not so sure that the point about same-sex marriage is correct. In current circumstances, I support laws enabling the state recognition of same-sex marriage. I agree that the current situation is difficult to justify on a secular basis, and that that is a crucial point.

    However, the libertarian line of argument that you’re scrutinising might not lead to provision of same-sex marriages. It might lead to an outcome where no intimate homosexual partnerships are illegal (which is already the case since the relevant laws would be ineffective in the US under Lawrence v. Texas,/i>) but from now on neither same-sex nor opposite sex intimate partnerships will be recognised by the state as “marriages” (the parties’ rights would then be determined by contract law, the law of trusts, etc.).

    I think, in fact, that this is the principled position for libertarians to take: the state should not interfere in what sorts of sexual and domestic relationships people enter into, even by providing registration, an easily-accessed legal template for certain kinds of relationships but not others, etc. Who is “married” then becomes an entirely private matter.

    Since I don’t find that position absurd (though it is not the one I actually advocate, mainly because I think it is politically unrealistic), I don’t find the implicit reductio ad absurdum very convincing.

    But of course, conservatives who support bans on marijuana and other recreational drugs, and who support marriage but only for straight couples, may have some thinking to do. Which was, I guess, your point.

  3. I’ll be very interested to see what the Supreme courts says, and what happens if it is contested. My expectation is that the politics of the situation will dictate the decision rather than the ethics. But that would not be for the first time.

    I think Obama has been poorly advised on this on both political and ethical counts, an arrangement could have been made to factor the concerns some bodies have with this. Since they have been ignored, it will result in a messy public argument he might have preferred not have happened at this time.

  4. See… http://online.wsj.com/article/SB10001424052702304724404577291762007718228.html

    The constitutional questions the Affordable Care Act poses are great, novel and grave, as much today as they were when they were first posed in an op-ed on these pages by the Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The appellate circuits are split, as are legal experts of all interpretative persuasions.

    The Obama Administration and its allies are already planning to attack the Court’s credibility and legitimacy if it overturns the Affordable Care Act. They will claim it is a purely political decision, but this should not sway the Justices any more than should the law’s unpopularity with the public.

    The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.

  5. Dennis Sceviour

    Mike writes “Opponents of the law assert that this is the first federal law that requires citizens to purchase a product…” needs some verification. The act may only require employers to purchase a private health care package. Although legislation typically starts with the best of intentions, it is only another name for a tax. Does it really matter what they want to call the rose?

    “Nations other than the United States do, of course, have national health care. Of course, this sort of thing is presented as a worse demon than forcing people to buy private insurance. But this is a matter for another time.” How about now to examine other countries to see how their public health care packages are working. Doctors are opting out of the programs and it is almost impossible to find a general practitioner. Surgical waiting times have increased to the point where people cannot get emergency surgery. Quackery abounds as government programs subsidize chiropractors, acupuncturists, sex therapists, faith healers, and snake oil salesman. Some people are adamant these are valid health care measures and their claims will probably hold up under various challenges. Everyone must pay for these services under a general health care insurance pool, even though they might worsen health. Right to Life groups bankrupt the hospitals by demanding infinite health care for otherwise terminal patients. Hospital sterilization is deteriorating so bad that hospitals are closing down (fatal C-diff disease). This is only the surface of the problems, and volumes on medical ethics could be written about them.

    At first, the Affordable Health Care program will open their doors to everyone. Then they will restrict it only to those holding a national health card; meaning robbery victims will not have the proper identification for emergency treatment. Identity theft will increase for both patients and physicians.

    What happens to patients who refuse to purchase a health care package? What happens to physicians who refuse to follow the new federal health care regulations and opt out of the program to offer private health care?

    There is a burgeoning senior citizens population, sometimes called the WWII baby boom problem. With the lack of filial piety in western cultures, the State has to find a way of looking after them. Affordable Health Care may help for a short while, but in the end, it will destroy health care. It is a selfish trick to play on a younger generation. Most, if not all States already offer basic health care to everyone. Should they jeopardize this with a Big Brother health bankruptcy tax? Perhaps the legislators have already answered some of these problems amidst the 2400 pages, but then again…maybe not.

  6. This is not the first Law to mandate a purchase actually, that might seem a trivial point but as a matter of accuracy it is not. The relevant law is available at the below link and was passed under the Presidency of George Washington.

    It is a matter of some interest as to what ‘factual matters’, to open up a can or worms philosophers should address or enroll in their arguments.

    http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001%2Fllsl001.db&recNum=394

  7. I’m not sure *why* being mandated to buy a “private” product is necessarily morally distinguishable from being forced to pay into a state-provided insurance plan like Medicare. I suppose one might say that such a rule would be a forced transfer from one private citizen to another, but if the purpose of the mandate is sound, why exactly would this be illegitimate?

    Note two things: (1) the mandate requires an individual to buy a private commodity, but not from a particular company — there is a marketplace where many insurers compete for business; and (2) most states already require drivers to purchase auto insurance — all auto insurance companies are private companies.

    The more basic issue here is whether the state has the power to compel behavior in order to address a grave national problem. Turning to the social contract tradition, I think the answer is clearly yes. I developed this point in an essay at Big Think yesterday:

    http://bigthink.com/praxis/nasty-brutish-and-short-health-care-without-the-individual-mandate

  8. Steven,

    Good points. In regard to the distinction between paying to the state versus paying a private provider, I suspect that people are inclined to push the “private” aspect because they would be hard pressed to argue that the state lacks the right to compel people to buy a product. As you note, the state already compels people to buy stuff (via taxes, etc.) and this seems legitimate (in some cases at least). As you note, the challenge is to try to show what is special about compelling people to buy from the private sector rather than buying from the state monopoly.

  9. I am sure someone must have mentioned this earlier, but I did not see it and I really read to understand it is rarely or never mentioned.

    All people discussing this issue seem to have never owned a car or a house. If you own a car, you must buy car insurance or you will be fined. If you own a house you must buy fire insurance or lose your mortgage. Both of these requirements have been in place for decades. Why is health insurance different?

  10. Dennis Sceviour

    Re: Max Chandler April 6, 2012
    “Why is health insurance different?”

    I would think the simple answer is that automobile and fire insurance protects others, while health insurance protects a single individual. There is some theoretical background for this in Mill.

    Second, auto and fire insurance are not necessary if a person does not have a car or a mortgage. The new Affordable Health Care Act demands everyone must pay out for health, or the law will take action. To me, that makes no moral sense.

    Third, auto and fire insurance have limited calculable costs in the loss of fabricated metal or wood. Health insurance covers a vague undefined meaning of public health that even medical practitioners do not agree, with costs exceeding far beyond that of a car.

    Finally, I like Mike’s argument “the challenge is to try to show what is special about compelling people to buy from the private sector rather than buying from the state monopoly.”

  11. Thanks for your response.

    Auto insurance has a medical section, usually the second largest part of the cost. The issue is being compelled to buy insurance and in both of the cases I mention people are compelled to buy insurance. The only people compelled by the health care act are those without inssurance from an employer and earning enough to pay for insurance. I think you moral point is totally empty and not in any way different from our existing compulsions. The larger cost of healthcare seems to me to make it more important rather than a special exemption. Is your issue that while not everyone has a car, but everyone has a body and similar exposure to health liabilities. What is special about health?

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