Thoughts on the Repeal of Health Care Reform

The House Republicans have voted to repeal the health care reform law, the Patient Protection and Affordable Care Act, and a federal district court judge in Florida just deemed it unconstitutional.  These developments come as no surprise, but they remind me of a conversation I once had with students in Australia.  I was teaching an intensive summer course at the University of Melbourne called Health Care & Human Rights, and I mentioned that in the United States, we had at the time approximately 44 million individuals without health insurance.  The class was astounded and didn’t want to discuss anything else for the rest of the session.  I shared their strong feelings about this statistic, but I was a bit surprised by their vehemence.  Finally, one woman raised her hand and told me that Australia’s entire population was under 22 million, and the students just couldn’t believe that we had twice as many people without insurance.  That certainly put the matter into perspective for me.  By the way, the number of uninsured today reportedly exceeds 50 million.

Another thought I’ve had is that those who are opposed to the individual mandate and believe it is unconstitutional to tax people for not buying health insurance should, by logical extension, believe that those who freely choose not to have coverage should not receive care even in an emergency.    This would mean that if a madman shot people in a Safeway parking lot, first responders should abandon those who chose to have no health coverage and allow them to writhe in pain and bleed to death.  If you believe in autonomous choice, you must believe in living (or dying) with the consequences of that choice, right?  Thoughts, anyone?

Comments

[Kevin Jon Heller]

It's funny: the same conservatives who argue that no one in the U.S. lacks health care because anyone can go to the emergency room if they get sick also argue that refusing to buy health insurance is "inactivity" under the Commerce Clause. You're absolutely right, anyone who chooses not to purchase health insurance under the ACA should be required to agree to never rely on any public health care, even in case of emergency. Then the inactivity argument would make sense.

Great post -- and I don't say that simply because I teach at Melbourne!

[Jonathan H. Adler]

The belief that the mandate is unconstitutional is not dependent upon a philosophical commitment to "autonomous choice" or some individualistic moral philosophy but a belief that the constitution only grants the federal government specific, limited and enumerated powers. So, for instance, most of those who argue the mandate is unconstitutional accept that, under current doctrine, medicare and medicaid are constitutional, and "medicaid for all" (a single-payer system) would be constitutional, even if it is no more consistent with an ectreme individualistic philosophy. Further, there are many ways to reduce the moral hazard problems created by the new health care regulations that are likely to be as effective as the mandate Congress enacted that would not raise similar constitutional questions. (See, e.g., http://volokh.com/2011/01/30/is-the-individual-mandate-necessary-2/ )

As a side note, even with the individual mandate, the health care reform legislation does not reduce the number of uninsured all that much, so the choice is not between a mandate that insures everyone and millions of uninsured. Millions are uninsured either way.

JHA

[Bill Turnier]

Foreigners will never understand that in the US the right to life ends at birth. Come on, get with it!

[DavidBernstein]

I, for one, don't think an individual mandate is necessarily a bad idea, though I do think the rest of Obamacare is misguided for reasons too detailed to discuss in a blog comment. Nevertheless, I think it's unconstitutional for the federal government to impose the individual mandate. I don't think it's unconstitutional for states like Massachusetts, however, to have such a mandate, and I'd welcome 50+ experiments in the states and territories to figure out how to best balance access, cost, and quality. There is basically zero reason that a one-size-fits-all experiment should be imposed from Washington.

[DavidBernstein]

Oh, and by the way, I'm still amazed that Australian "Human rights" authorities shut down a Jewish dating service on the grounds that it was "discriminatory", and when I traveled to Australia I was amazed at the overt racism even law professors expressed toward the aborigines. I suppose it's easy to be amazed by the foibles, real or imagined, of OTHER countries.

[Tim]

Have you heard about the South Dakota group that is looking at forcing people to purchase a gun for self-defense?

Some interesting parallels can be drawn between the two hot button issues - Can the Federal gov't force one to purchase a gun? If they can force one to buy health insurance, shouldn't the same rule apply to self-defense insurance? Would the police be obligated to protect those who were not willing to defend themselves?

I will begin to take Health Care reform advocates more seriously when they propose to eliminate the link between employment and health insurance. Until that Gordian knot is severed, any 'reform' is mere window dressing.

[Joe]

Can the Federal gov't force one to purchase a gun?

Well, the Second Militia Act of 1798 did just that.

[Kevin Jon Heller]

I realize it's off topic, but I would be curious to know which Jewish dating service Australia shut down. I can find no reference to something like that happening, and all of the major Jewish dating sites, such as J-Date, are available in Australia.

As for Bernstein's other claim -- Australia is a deeply racist country in many ways, as even a cursory glance at its history indicates. But law professors? I doubt it.

[Jonathan H. Adler]

Joe --

I believe the militia act required Americans to have a gun, not necessarily to purchase it. In any event, the argument is that participating in the defense of one's country is a fundamental obligation of citizenship (like jury duty, registering for the draft, and paying one's taxes). Buying a privately offered product so as to cross-subsidize health care for others, not so much.

JHA

[confused]

"This would mean that if a madman shot people in a Safeway parking lot, first responders should abandon those who chose to have no health coverage and allow them to writhe in pain and bleed to death."

Why do you need health coverage to pay for care? I've been uninsured at many points in my life; when I had to go to the doctor or ER, I would just get something called a "bill" and I would pay it with something called "money." Under your absurd scenario, only people who buy health care from Barack Obama would be entitled to care. But no one adopts your silly hypo, so try again.

[TJ]

This is just lowering the standard of the debate. Saying that Congress (or rather, the states) may fund ambulances and first responders and hospitals doesn't mean that Congress can then use any other measure necessary to reduce the cost of that funding. By your reasoning, if Congress raises an army to defend the country and decides that it would be cheaper to quarter soldiers in private homes, then anybody who refused to quarter soldiers in their home should be excluded from military protection. Doesn't work that way.

[Realistic]

To "confused":

Congratulations on having the "money" to pay for emergency medical care out of pocket. Perhaps you've heard that most Americans are not as fortunate as you (and weren't even prior to the recession)? The scenario is hardly absurd. I live on the south side of Chicago, where emergency care *is* now, in fact, denied at my local hospital to many uninsured folks who cannot pay out of pocket, and they constitute a large proportion of patients seeking care here. This scene is playing out all over the country as hospitals struggle to stay afloat in a sea of skyrocketing costs and unpaid bills.

Your distaste for Obama is palpable; get over it. The issue is real and serious, and has nothing to do with him. Health care reform was needed long before him, and whatever he manages to pass in this political climate won't do nearly enough to fix the problems. Perhaps a Republican president will finally have the final pleasure of going the full measure to provide the human right of health care to all Americans.

[Generic viagra]

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[confused]

" The scenario is hardly absurd. I live on the south side of Chicago, where emergency care *is* now, in fact, denied at my local hospital to many uninsured folks who cannot pay out of pocket, and they constitute a large proportion of patients seeking care here. "

Refusing to provide ER treatment when treatment is needed is illegal. Everyone agrees on that. Trying to demonize anyone who doesn't want to buy Obamacare doesn't work. And even with Obamacare and reduced payouts to health care providers, even more doctors will turn away patients illegally.

Try again, please.