Thursday, July 5, 2012

The ACA and Social Obligations

In an attempt to return to blogging -- some thoughts here in the wake of last week’s Supreme Court ruling on health care (Though by now perhaps the subject is dated.  But I’m trying still to work out my own views on the ACA.  It’s possible that by the end of this post I will.)

In some ways, the whole affair is difficult still to comprehend.  The only possible word to describe it all is: irony.  Here we have a Democratic administration adopting a health insurance plan originally devised and conceived of by conservative think-tanks, and proposed by the Republican party in the early 90s, then in opposition to so-called “Hillarycare,” nearly struck down by the conservatives on the Supreme Court, and saved by the (purportedly) liberal justices.  In its wake, self-identified liberals and progressives are cheering, while conservatives are fuming.  At the same time, some left-wing critics of the law are considerably less-than-pleased at their sometime progressive allies. What are we to make of all this?

One possible explanation is that it’s all about tribalism.  People just want to root for their team.   (Among other bloggers “Vast Left Conspiracy” points this out about progressive support for Obama generally.)  And I think that’s a huge part of it. 

Would tribalism also explain the Supreme Court vote (Roberts aside)?  Let’s imagine for the moment that, consistent with its conservative origins and Republican support, the law had been passed by a Republican president and Congress.  Would Scalia have voted to uphold it?  Would Ginsburg have voted to strike it down?  Would it depend on who had brought the challenge?

I would like to think not.  But that’s only what I would like to think!  We saw the extraordinary partisanship of the Court on display in Bush v. Gore.  (I was in law school at the time.  I remember when the Court issued a preliminary injunction barring the re-count, with the conservatives issuing the ruling.  It was in direct contradiction to their supposed conservative principles of being sparing, at the least, with injunctive relief absent irreversible injury, which they typically defined narrowly.)

Still, I don’t think partisanship/tribalism exclusively accounts for this bizarre political/legal spectacle.  To understand this further, let’s unpack the law a bit.  The plan, as adopted by Republicans in the early 90s, was intended to do two things.  First, preserve, and strengthen, the insurance industry.  Second, achieve (close to) universal coverage, through a form of socialization.

The second goal might seem odd, coming out of conservative think-tanks, and I doubt very much that conservatives themselves ever expressed the matter that way. But this is precisely what the individual mandate does.  If we require insurance companies to, say, not discriminate on the basis of pre-existing conditions, or even if we insist that no one be turned away from the emergency room regardless of ability to pay, then, somehow, medical care has to subsidized  – and for that to happen, healthy people, not only the sick, must be in the pool. This has always been understood by advocates of a “single-payer” approach.  The “individual mandate” approach was a way to replicate the economics of single-payer while still preserving the insurance industry.  It was therefore “conservative” in that it attempted to solve the coverage problem without creating a state-administered pool.  But it was still “liberal” in the sense that encouraged a subsidized pool – albeit a pool that was administrated by for-profit insurance companies.

And this, I think, was the real nature of the objection of the “conservatives” on the court.  It was not about (what Ginsburg brilliantly termed) “the Broccoli Horrible.” It was about the horrible specter of social rather than individual financing for medical care.

In one illuminating exchange during oral argument between Solicitor General Verilli and Justice Scalia, Verilli tries to explain what is  unique about the health care market: the goal of universal health care is, he says, “a result of the social norms to which we've obligated ourselves” Scalia replies: “Well, don't obligate yourself to that.”

 America still wants to have it both ways.  Our (ideological) love of the market and fear of the state has helped keep the insurance industry alive (but see polling on “Medicare for all” – most American want it).   But we won’t take the logic of the market, as applied to the health care, to its ultimate conclusion.  In spite of our ruthlessly individualistic selves, even Americans still do not want people turned away from the emergency room – even we will not let people die on the street.    If we can own the fact that, yes, even we have achieved that degree of civilization, then we will ultimately have to embrace at least some form of socialized payments for delivery of health care.  

But evidently, for the conservatives on the court, any degree of subsidized medical care is simply too much.   In Scalia’s vision, people pay for their own insurance or they don’t.  If they don’t, and they get sick – tough luck.  Let them die.

I think it is this terribly draconian vision of the right that prompts many progressives to support the law.  Which is entirely understandable.   After all, the  law, among other things, bars insurance companies from discriminating against those with pre-existing conditions, and bars them from dropping people when they get sick.  These are non-trivial achievements.

 At the same time, I think progressives are mistaken to ignore the law's conservative history, and the left critique thereof -- namely, if we're going to "socially obligate" ourselves to expanded health care coverage, this is the worst way to do it.  Leaving for-profit private insurances as de facto administrators of the financing pool leaves in place the very incentives and resources to undermine any attempt to regulate the industry.  They will always look for a way to cover the healthy and deny the sick.  The notion that the insurance industry will become any better at recognizing and paying claims is sheer fantasy.  The left’s desire for single-payer is thus not a matter of mere ideological rigidity (a frequent charge)– it is that, so long as we retain a trace of civilization about making sure no one goes without care regardless of ability to pay, the profit motive will have to be taken out of the system. (Here's a decent NYTimes piece on why the profit motive is so disastrous for the provision of health care).  Moreover, this scheme entrenches the insurance industry yet further.  By making them the very center and lynchpin of the ACA, their political power grows, and the prospects for single-payer becomes even dimmer.

So is this a victory? Frankly, I still don’t know.   If the a previously-deemed conservative idea is now deemed not sufficiently individualistic, this only shows just how reactionary the conservative movement in America has become.  And if all we can we do is hold back the most reactionary forces in America, that seems to me not terribly great cause for celebration.    

And yet, I nonetheless take some solace in seeing the Scalias of America rebuked.   We can, in fact, lawfully “socially obligate ourselves” to ensuring that everyone receive the medical care they need, regardless of ability to pay.  We can, in fact, come to a collective decision that the necessities of material existence should be provided for all – and nothing in the Constitution requires otherwise. 

 (There still remains the Constitutional and political question on the question of the government forcing us too buy something.  I admit that that could be quite dangerous.  It perhaps elevates state-sponsored capitalism to a whole new level.   But I think Roberts was right -- the plan simply means that people who don't buy insurance get taxed at a higher rate.  The government does this all the time anyway -- it gives tax credits for certain purchases, e.g., solar panels, as observed by Justice Sotomayer in oral argument.  If Congress had structured it as an overall tax increase with a tax credit for those who purchase insurance, it would, as an economic matter, be the exact same thing, and there would be no question whatsoever as to its Constitutionality.  It's simply that the Democrats were trying to have their cake and eat it too.  They didn't want to be accused of raising taxes.  A good piece on that is here. Perhaps a fuller legal/Constitutional analysis will appear in another post)