By Ekow N. Yankah, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University
As the Supreme Court decides the fate of the Affordable Care Act (ACA), many commentators have expounded on the constitutionality of the landmark law. What has been lost in the debate is the fundamental philosophical vision that unifies the intricate provisions of the bill. Indeed, political conservatives have convinced the public the only deep question is whether the government violates individual rights by mandating that citizens purchase insurance.
Ultimately, the ACA is an example of the intersection of law, economics and philosophy. The legal question rests on competing interpretations of the Constitution’s Commerce Clause; whether the individual mandate represents Congress regulating an already existing market or exercising illegitimate plenary power by creating commerce. This, in turn, rests on the economic reality that nearly every person must, at some point, seek and pay for medical care. Of course, no one can predict if you, I, our dearest friend or neighbor, will be the one to require care. Because sudden illness or accident may strike any one of us, those unable to pay for their medical care impose costs on all insured to make up that cost.
This last point is obvious because it is based on a deep but unearthed philosophical commitment. To see why this question is uniquely framed by the healthcare debate one need only take a moment to contemplate the very purpose of insurance. Insurance, of course, is a way of pooling risk - by all contributing, we can be confident there will be resources to take care of us when unpredictable injury befalls any of us. But to highlight the philosophical dimension, take it a step further. Imagine the medical equivalent of the movie “The Minority Report;” instead of just knowing that some have a higher chance of an illness, we knew who would have a heart attack or a brain tumor or even be in an accident. Given this information, we, as a society, would still have to reach a decision as to how to treat fellow citizens, who through no fault of their own, suffered serious harm.
Most of us, I suspect, would understand some obligation to assist such citizens. We understand critical healthcare is the kind of public good that should not be held hostage to the morally arbitrary luck as to which one of two identical people happens to have a heart attack. It is this feature that makes so compelling the idea that one should not be denied coverage due to a pre-existing condition. Of course there will be margins where we think there must be rightful adjustment. The smoker, just as the daredevil, may have to pay higher premiums to insure their greater risk taking and the precise behaviors and precise amounts of increased premiums will be a matter of debate. But outside of these adjustments, it is because the person struck by a heart attack is morally indistinguishable from any one else, we understand intuitively that their lives, as near as possible, should not be destroyed from sheer bad luck. At bottom it is this intuition that has us currently committed by law to providing critical healthcare to all who need it, albeit in the form of expensive and ineffective emergency room care that all too often serves as primary care for the poor. At bottom, we share the philosophical commitment that we, as a society, will not turn people away from critical care. This results in a bizarre system where the vulnerable must wait until they are desperately ill until we treat them.
One could believe that we should treat healthcare like car insurance. Notice if you do not buy car insurance and you total your car you must absorb the cost; either pay for the repairs, a new car or do without. We could simply turn away those unable to pay. We could assign all those who can pay, through insurance or by their own wealth, a colored bracelet; if you were among the bracelet-less who collapse on the street or wander into an emergency room, we could gingerly step around you or politely turn you away. This would be a sort of conservative, libertarian answer; so long as I do not harm you, I have no other duties toward you. This view is at the heart of the Republican party’s philosophy that the government invades one’s rights by requiring one to purchase insurance.
But what “The Minority Report” hypothetical reminds us is that we reject a political vision that would abandon those we know would become sick through no fault of their own, in favor of another political vision. The heart of this philosophy stretches back at least as far as Aristotle, who noted that citizenship is to share something deeper than a duty not to harm another. Many of us cheer for our teams during the Olympics. We are saddened and angered when we learn of some injustice done by our government in a way that is different than if the same tragic event was committed in someone else’s name. Ironically given today’s politics, this view classically described as republicanism, is the one rejected by the current Republican party and held dear by the Democratic party. The classic republican (little “r”) view rejects the views of the modern right that the only duty we have is not to harm others and that everything the government does is a violation of freedom (to be justified by cost benefit analysis). At bottom, a classic republican view – the view that undergirds the ACA – insists that we are fellow citizens, civically bonded; that we live together not simply beside each other.
Once we see this commitment it becomes clear why the ACA generally and the individual mandate in particular are essential. We are already politically committed and legally obligated to care for those in need of healthcare. Our intuition is strengthened, as was central in the Supreme Court arguments, by our knowledge that virtually all of us will eventually participate in the healthcare market. Once these two things are seen in combination, it becomes perfectly obvious that Congress is indeed regulating an existing market. It is regulating how we will insure ourselves rather than forcing us to participate in commerce. Otherwise, the young and healthy do not buy insurance or they get cheap insurance that many insurance companies strive not to honor. That scenario leaves increasingly isolated pools of the old, the sick or those with pre-existing conditions with ever-climbing premiums that are eventually unaffordable. Indeed both our hypothetical and our current commitment to providing healthcare remind us that health insurance is not simply about pooling risk, it is about sharing risk.
Ultimately whether one understands the power of the government to act in order to secure our commitment to provide healthcare when unavoidably needed for our fellow citizens is both the deepest question of our philosophical and political character and, in a very real sense, a matter of life and death for tens of millions of Americans.