The Less Bad Alternative

I didn’t expect to find the Supreme Court deliberations regarding the constitutionality of the Patient Protection and Affordable Care Act of 2010 to be especially engaging. And, in some ways, I wasn’t disappointed. The Democrats said what their script required them to say. The Republicans said what their script required them to say. Nor did the justices themselves deviate much from the expected path: each asked sharper questions of the lawyers representing the side of the aisle with which he or she is generally not identified than of the lawyers representing the point of view usually associated with that justice, yet generally without abandoning the necessary mantle of presumed judicial impartiality regarding matters before the court. (I was initially amazed, but also impressed, that the justices felt they would, or even could, hear enough from both sides in just six hours to make it possible to render a decision. The darker side of my personality wondered if that was simply because they all already knew how they were going to vote and didn’t want to waste more than three days listening to pointless presentations. But maybe, to grant the system the benefit of the doubt, the complexity of the issues involved simply demanded that a time-limit be set that absolutely would require the lawyers representing the parties to the suit—the attorneys-general of the twenty-seven states trying to overturn the act on constitutional grounds and the federal government—to get as quickly to the point as humanly possible.)

But in other ways I was wrong. Almost to my surprise, I’ve found these last three days fascinating. For one thing, discussing the ideal way to define, and the best way to defend, the civil rights of our citizens is not something ever lightly to pass by. And, indeed, if one thing came through as I listened and read my way through the week, it was that both sides were staking out the very same ground as the territory they were claiming to wish to defend: the rights of the citizenry to live free lives in a free state (and in fifty free states) governed solely by laws designed to protect their freedoms and not to burden or encumber their rights or their freedoms. By any measure, that will always be a debate worth undertaking! And so I thought I’d write this week about the issue from that specific vantage point: without claiming the background or the expertise in constitutional law necessary to proffer a truly informed decision about the extremely technical legal matters that are now before the court (both of which—the background and the expertise—I surely lack), I’d like to approach the issue from the far simpler vantage point of a citizen whose rights both sides claim they have come to the Supreme Court to protect.

There are certain rights that we as a society have determined exist outside the framework of wealth or social status. I believe, for example, that we in this country are universally of the opinion that even the poorest of the poor are entitled to drink clean water; surely no one seriously thinks that parents who do not earn enough money to pay income tax and who therefore do not participate personally in subventing the costs involved in keeping our water supply clean and free of pollutants should be expected to make their peace with their children having to drink brackish, filthy, or contaminated water. We feel the same way about clean air; no one seriously argues, or ever would seriously argue, that we should reasonably permit levels of air pollution in towns and neighborhoods mostly lived in by people who earn too little meaningfully to participate in the effort to keep our air clean than we would ever tolerate in richer, more affluent places. When you think about it, we feel that way about a lot of things related to the maintenance of a healthy lifestyle—about the right to work in a smoke-free environment regardless of personal wealth or status, for example, or about the right of all children to be vaccinated against potentially life-threatening diseases as part of our national interest in protecting the public weal.

Clearly, there are also things in our world that we do deem appropriate to deny to people who cannot afford them. And there are lots of those things too, including some things that people of means would be loath to do without. In our society, for example, we do not consider owning an automobile to be a civil right despite the fact that finding a good job and earning a living is far easier in our society for someone who does own a car. Nor do we consider it to be the right of every citizen to have unfettered access to the Internet (also despite the fact that it must be impossible or almost impossible to find a job without such access) or to send his or her children to a summer camp in the country. Or to attend live concerts. Or to go to the theater. Or to see the Knicks play at the Garden or the Yankees at the new Yankee Stadium. The things in this category, we deem perks of wealth: if you can’t afford them, you have to do without them. And that, I suppose, is as it should be in a capitalist democracy: when simmered down to its most basic level, after all, the great perk of possessing wealth consists precisely of having the money to buy things you couldn’t have if you didn’t. Nor is that something to be decried or lamented, I don’t think: people shlep themselves out of bed in the morning and go to work precisely because they wish to have things they know they’ll never have if they don’t get up and go to work. (Nor is it fair to rephrase that thought to suggest that, in the end, it is greed alone that fuels our American society. What pushes us forward is the desire to live better lives, to be able to provide more for our children, to be able to be more generous with the needy, to better the world by bettering our own situations. To denigrate that grand set of internal impetuses baldly as “greed” seems, to say the least, meanspirited and more than a bit insulting to people, myself included, who work for a living.)

Health care, however, we have placed in the former category. Not because it must be there by law, but because we as a society have determined that it shall be there, that it should be there. As a result, we do not deny health care to sick people in our country. Public hospitals are barred from turning people away from merely because it is not obvious how exactly they are going to pay for whatever services are rendered. Even private hospitals are barred by the Emergency Medical and Treatment Labor Law of 1986 from turning away patients in emergency situations. We underwrite vastly expensive programs like Medicaid specifically to provide health care to citizens and legal residents unable to afford their own health insurance. (And to say “vastly expensive “ is to say almost nothing at all: in 2010, the federal government spent $275 billion on Medicaid, up from $118 billion in 2000.) But not all the uninsured or under-insured qualify for Medicaid—and, according to the Census Bureau’s 2011 Current Population Survey, there were approximately 49.9 million Americans who did not have health insurance in 2010. So we are talking about scores of millions of people whom we can’t quite bring ourselves to shut out of the system, but who are personally not bringing anything into it. And that is the crux of the problem, as I finally understand it in the wake of this week’s hearings: we lack the heartlessness simply to tell people who can’t afford health insurance simply to do without health care, yet the burden of paying for that care ends up falling squarely on the shoulders of the insured. And that, it seems to me, was the crux of the matter as it played itself out in the Supreme Court this week.

So what do I think, I felt myself challenged to ask, as I listened along to the debate in the course of this last week. Is it the greater infringement on the civil rights of citizens for them—for us!— to be obliged by law to carry health insurance or pay a commensurate fine for failing to do so? Or is it the greater infringement on the civil rights of those same citizens to be unable to escape paying for other people’s health care just because the system operates on the backs of the insured and the taxpayers? Surely, both impact negatively upon the civil rights of the average (insured, tax-paying) citizen. It’s hard to imagine anyone arguing with that! And so the question, as I think I heard it being framed, comes down to determining which constitutes the greater infringement on those rights, thus the greater evil, thus something for our nation to determine that it wishes to avoid even if it means opting for an alternative that is only slightly less unpalatable. The real alternative—making healthcare into a commodity and letting people who can’t afford it simply do without—seems to be unimaginable to most citizens, which reality frames the debate as being essentially between two alternate alternatives to that one. And thinking of the issue in that specific way is what transformed the hearings this week, at least for me personally, from something dull and perfunctory into a debate I felt drawn into and engaged by.

Our Jewish tradition understands the obligation to care for others to be a function of our obligation not to burden others by failing to care for ourselves. Therefore, our first obligations in terms of healthcare provision is for us to make sure we ourselves are properly looked after. And our obligations move out in concentric circles from there: first to our spouses and children, then to our parents and siblings, then to our extended families, then to our neighbors, then to other residents of our towns and cities, then to the wider world. At the heart of the matter, though, is the expectation that society functions best when the first responsibility of each citizen is to avoid burdening others by accepting responsibility for his or her own needs…and only then by expanding out one’s ability to attend to the needs of others in reasonably drawn concentric circles of obligation. That sounds like sound thinking to me. And so I find myself, after wading reading and listening all week, hoping that the baby does not end up getting tossed out with the bath water. If the Patient Protection and Affordable Care Act turns out either partially or entirely to be inconsonant with constitutional law, surely a decision the Supreme Court is entitled to make, then I hope we can find a constitutionally-acceptable way for each of us, prosperous and less prosperous alike, to shoulder our fair share of the burden of healthcare in our country, thus personally to become responsible for our country being a place in which no one’s life is ever forfeit for lack of funds to see a doctor, and in which all citizens share reasonably and fairly in the costs involved with making that noble goal part of day-to-day reality for us all.