EDMUND BURKEDonna Dubinsky had a wonderful op-ed titled “Health Care Isn’t Like Broccoli” in the Washington Post on April 6, 2012 (the title for the on-line version is "What Makes Health Care Different").
If the federal government can mandate that individuals purchase health insurance, why can’t the federal government require that people purchase other things too? Dubinsky argues, “There are two simple limiting conditions, both of which must be present: (1) it must be a service or product that everybody must have at some point in their lives and (2) the market for that service or product does not function, meaning that sellers turn away buyers. In other words, you need something, but you may not be able to buy it.”
She then tests these principles against broccoli, burial services, and health insurance. Only for health insurance are both conditions present.
Elegant, simple, and sensible.
There are, however, two ways at looking at the problem. Dubinsky sees the mandate as a means of protecting people who will need health insurance some day, but when that day arrives will not be able to purchase it because, for example, they are sick and insurance companies won’t cover pre-existing conditions.
But there is another way to view the mandate: as a device to protect citizens from having to pay for health care to other people who could have purchased insurance earlier but chose not to do so.[*]
I expect that conservatives on the Court will find an argument based on the second perspective more persuasive. While everyone can sympathize with people who did not purchase health insurance earlier, and cannot do so when they are sick, there are still the dual problems of liberty and individual responsibility. “Someone who made a choice cannot complain about the consequences of their choice,” I imagine conservative justices thinking. It’s a fair point. Liberty is a wonderful gift, but it can also be a difficult gift. Liberty means we can’t expect others to take care of us.
Dubinsky is correct when she says the market fails in this area. It fails, in part, because of the disjunction between consuming health services and paying for those services. Someone who arrives at a hospital emergency room in critical condition is going to receive medical care whether or not he can pay for it. Why should responsible citizens who paid for health insurance for themselves and their families be compelled to pay for the health care costs of irresponsible citizens who did not purchase insurance? What about the liberty of responsible citizens who are being compelled to carry the irresponsible on their backs?
At oral argument, Justice Scalia suggested that solution would be to change the law to allow hospital emergency rooms turn away the uninsured. That does not comport with social mores and values, he was told. Then change the social mores, Scalia responded. But, of course, the Court must decide the case for the America that exists, not a different America that Justice Scalia may (or when he is thinking clearly, may not) prefer.
The law requires that hospitals provide emergency care because Americans find it abhorrent that people in dire need be turned away at the emergency room door because they cannot afford care. But Americans also want people to pay their fair share of essential services. Because of the special characteristics of health care, the market does not work to honor both values. That is why governmental correction to the market is necessary.[†]
Dubinsky’s two conditions – set forth above in the second paragraph of this post – still work. All we have to do is delete the phrase “sellers turn away buyers” at the end of her second condition. That is, market failure does not only occur because some people are unable to purchase health insurance when they want it. Market failure also occurs because Americans find it unacceptable to deny emergency care to those who need it.
[*] Some people don’t purchase insurance because they cannot afford it – or at least cannot afford the full cost of insurance. This doesn’t change the analysis. People should pay their fair share, that is, as much of the cost of insurance as they can reasonably afford. The Affordable Care Act works exactly that way: it both requires people to purchase insurance and provides graduated subsidies to help people do so.
[†] The Affordable Care Act provides a conservative approach of adjusting existing private markets. Indeed, as everyone knows, the ACA adopts the approach endorsed by the conservative Heritage Foundation and described, in June 2005, by Massachusetts Governor Mitt Romney as “the ultimate conservative idea.”