Joanne Knight

March 30, 2012

US Health Care Case

Filed under: free market economy — joanneknight @ 8:52 pm
Tags: , ,

One of the questions discussed in the Health Care Case was whether it was ‘proper’ for the Federal Government to legislate to compel people to buy health insurance. The rationale behind the ‘individual mandate’ seems to be that if everyone buys health insurance this will make it more affordable for all. This appears to me to be a measure by which the Federal Government seeks to enact legislation for the benefit of the majority of people of the United States.

The Supreme Court construes the question in terms of an interference with individual liberty, the choice to purchase health insurance. Justice Kennedy posits that the requirement to buy health insurance changes ‘the relation of the individual to the government’ in a ‘unique way’. The Government argues everybody is in the market for health services and because the way that people pay for health care is through insurance rather than direct purchase at point of sale. Here we see the difference between the approach of the government and the approach of the Supreme Court. The government articulates the provision of health services as a collective endeavour and a community responsibility. The Supreme Court reduces it to a debate about individual right not to be compelled by the government.

The Supreme Court argues that you could not define the health care market as including everyone because not everyone will need a heart transplant. They seem to be denying that health care is a community responsibility. They also appear to be saying that health care only involves acute emergency surgery. They seemed to have missed the point that the cost of basic health care is now unaffordable for most people without health insurance. This is one of the effects of health insurance on health care services. I know from personal experience. Without health insurance, we could not afford to immunise our daughter at $250 per injection.

Justice Ginsberg argued that ‘it’s not your free choice [ie purchasing health insurance] just to do something for yourself. What you do is going to affect others, affect them in a major way.’ Ah ha! Do we have some light dawning. Maybe it’s not just about individual free choice maybe it’s also about our responsibility to the community.

But the discussion moves off in a different direction into the the powers of the Federal Government which continues the community vs individual dichotomy. The government must do what is ‘necessary and proper’ to pass a law. Justice Scalia explains:

‘The argument here is that this… may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers….

I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.’

Justice Kennedy drives to the heart of the matter:

‘But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. …And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.’

No one in the United States has a positive duty to rescue someone else if they are in danger. No legal duty. In some situations one can see this is reasonable. It is not reasonable to expect someone to run in front of a moving car to prevent someone else being injured or killed, but it is reasonable to take evasive action when driving your car to avoid colliding with someone. Requiring people to buy health insurance is analogous to evasive manoeuvering to prevent others from being injured by a lack of health care. This is more in the nature of a public policy or a planning decision, than a compulsion.

Much of the Supreme Court reasoning is in the nature of a ‘slippery slope’ argument. If we give the government this power we cannot restrain it from doing anything, compelling us to buy cell phones for emergencies or broccoli. This is not the government coming after you, this is the responsibility of all to contribute for the good of the community. Currently, some people cannot afford health insurance and thus the premiums increase.

The Supreme Court sees itself as protecting the individual from the abuses of government and if the individual has no duty to rescue someone in danger then the government has no right to compel them to do so. However the principle which Kennedy refers to does not come from Constitutional law but from tort law, case law. He is importing a principle from a different area of law for his own purposes. It does not seem that this principle has anything to do with limiting the powers of government. It is an inappropriate analogy.

The government has a duty to protect its citizens. It is proper for the government to make laws for the benefit of its citizens. This is the primary responsibility of government. This is the basis of Rousseau’s social contract. We give up some of our liberties, in order for the government to be able to effectively govern. If the government is not permitted to create a single payer health system, it is their duty to find a method available to them to bring about a situation where everyone can afford health care. They have attempted to do this through compelling people to buy health insurance and thus reduce the cost of health insurance. This is an interference with the individual’s right to choose not to buy health insurance. However, it is proper to require individuals to do this if the outcome is to benefit the wider community. The government must govern to benefit all citizens. Its duty is not to avoid compelling people to do things they do not want to do. The Supreme Court has mistaken its role in constitutional interpretation. They should not protect the rights of the individual at the expense of the rest of the community.

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2 Comments »

  1. Clearly expressed so I can understand core issues however I fail to see any social justice in there
    Poor people can’t afford health nor can they be forced to contribute to their health cover
    So they are left with no cover
    Where’s the humanity in that??

    Comment by Paul Hewton — March 30, 2012 @ 9:11 pm | Reply

    • Thanks Paul. There are currently 40 million people without health cover in the US. There is very limited Medicare available to the poorest people. I’m ambivalent about the compulsory health insurance but the Supreme Court here runs extreme arguments defending individual rights at the expense of the community.

      Comment by joanneknight — March 30, 2012 @ 9:29 pm | Reply


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