Healthcare: A mandate that overreaches

Healthcare is different. That, according to defenders of the Patient Protection and Affordable Care Act -- “Obamacare” -- is the justification for the law’s individual mandate.

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FOR THE RECORD:
This piece has been updated to reflect editing changes that appeared in the print version of the Op-Ed but not in the original Web version. The Web version originally said that catastrophic insurance is prohibited and outlawed by the Patient Protection and Affordable Care Act, and in the author’s opinion, the act shifts costs unfairly to all those covered. Instead, the act marginalizes catastrophic insurance and strongly encourages the purchase of comprehensive insurance, and the cost shifts to the majority of Americans, who are ineligible under the act to buy the high-deductible catastrophic policies they might prefer.

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Healthcare is different, they say, because every hospital must provide emergency treatment to all who present themselves, regardless of their ability to pay. This moral obligation became a legal one under the Emergency Medical Treatment and Active Labor Act of 1986, a law that failed to provide a mechanism to reimburse hospitals for the costs of caring for the poor or uninsured. Thus, healthcare is the only commercial service people receive even if they can’t pay for it, which means someone else must foot the bill.

The rationale for the Obamacare mandate is to prevent “cost shifting” -- from people who could purchase health insurance policies but don’t to people who already have insurance. The Daily Beast’s Michael Tomasky explains how the costs get shifted: If “you don’t buy insurance and you get hit by a bus and you need $10,000 in medical care and you can’t and don’t pay for it, that harms me, because I’m an insured taxpayer and I’m helping to pick up your tab.”

Tomasky invokes the 19th century English philosopher John Stuart Mill to contend that the individual mandate satisfies the core principle of limited government in a free society: The only justification for government to curtail one person’s liberty is to prevent harm to others. Curtailing my freedom not to buy health insurance, as the individual mandate does, prevents the harm that will be visited upon others if they’re forced to pay for my emergency medical care through higher premiums on the insurance policies they carry.

This would be a good argument for a healthcare reform that imposed a tax on people who could buy insurance covering the kind of emergency care that Tomasky describes. The government could set the tax high enough to collect revenue equal to the aggregate cost of treating the uninsured, and then give individuals tax rebates if they took the hint and insured themselves against such costs.

Obamacare, however, marginalizes rather than relies on health insurance policies that would do no more than prevent cost shifting from the voluntarily uninsured to the already insured. Instead, it strongly encourages the purchase of health insurance policies that “offer a comprehensive package of Ã?Â? ‘essential health benefits,’” according to the Department of Health and Human Services. Specifically, a legitimate policy must include at least the following:

1. Ambulatory patient services

2. Emergency services

3. Hospitalization

4. Maternity and newborn care

5. Mental health and substance use disorder services, including behavioral health treatment

6. Prescription drugs

7. Rehabilitative and habilitative services and devices

8. Laboratory services

9. Preventive and wellness services and chronic disease management

10. Pediatric services, including oral and vision care

As a result, Obamacare not only makes sure there will be no upward pressure on other people’s health insurance premiums if my uninsured self gets hit by a bus while I’m crossing the street, but also makes sure they’ll suffer no such collateral damage if I’m out for a stroll, minding my own business Ã?Â? and become a heroin addict. Or learn my kids need braces and glasses.

Because of these requirements, the Obamacare mandate doesn’t uphold but violates the John Stuart Mill standard. The law curtails my freedom to manage my own finances and assess my own risks. (It’s the kind of freedom Californians exercise all the time when they weigh the purchase of earthquake insurance.) And it’s curtailed not to avert harm to others but to provide benefits for others.

Under the guise of preventing cost shifting, that is, Obamacare commits cost shifting. It shifts the costs of the benefits the law confers, especially the new requirement that insurance companies must provide affordable health insurance to all applicants, regardless of their medical history. It shifts the cost to the majority of people ineligible for the high-deductible, catastrophic insurance policies they might well prefer. Buying a more expensive policy covering a long list of benefits the government says are essential, but which the individual obeying the mandate may consider excessive, increases the flow of premium dollars to the health insurance companies, offsetting the costs of their new obligations.

There is a technical term for the mechanism used by the government to secure funds for discharging obligations it considers important. It’s called a “tax.” Hardly anyone disputes that Congress possesses the constitutional power to enact a tax to pay for newly conferred healthcare benefits. Whether it possesses the authority to mandate that Americans enter into contracts to purchase insurance from third parties in the furtherance of some governmental objective is, by contrast, a contestable question.

Thus, it would have reduced Obamacare’s complexity and constitutional jeopardy if the president had chosen to pay for it with a tax. Obama eschewed such candor, and resorted to the individual mandate, in order to keep his campaign promise not to raise any federal tax on any U.S. family making less than $250,000.

The individual mandate is more than a bad solution for the administration’s tax-pledge problem, however. Both the mandate and the tax promise are symptoms of modern liberalism’s core defect: chronic disingenuousness about its agenda’s costs and how those costs will be paid. It was always absurd, even insulting, for Obama to claim he could fulfill his many campaign promises about healthcare, green jobs, infrastructure investments, expanding education and on and on, while exempting 97% of all Americans from any tax increase. The individual mandate compounds that problem, and that dishonesty, by paying for Obama’s central domestic achievement with a tax that pretends it’s not a tax.

William Voegeli is a senior editor of the Claremont Review of Books, the author of “Never Enough: America’s Limitless Welfare State,” and a visiting scholar at Claremont McKenna College’s Salvatori Center.