The Right to Healthcare and the Supreme Court

Last updated on: April 9, 2012 at 5:18 pm by Morning's Minion

The Right to Healthcare and the Supreme Court 2012-04-09T17:18:18-05:00 Morning's Minion

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Let me begin with a simple assertion: the Catholic Church views access to healthcare as a basic human right. To the extent possible, societies are obligated to provide healthcare for all people who live under their jurisdiction. This is a fundamental principle of justice. Consider some evidence for this:

Catechism: “Concern for the health of its citizens requires that society help in the attainment of living-conditions that allow them to grow and reach maturity: food and clothing, housing, health care, basic education, employment, and social assistance”.

John XXIII: “Man has the right to live. He has the right to bodily integrity and to the means necessary for the proper development of life, particularly food, clothing, shelter, medical care, rest, and, finally, the necessary social services. In consequence, he has the right to be looked after in the event of ill-health; disability stemming from his work; widowhood; old age; enforced unemployment; or whenever through no fault of his own he is deprived of the means of livelihood”.

John Paul II: “The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge”.

Benedict XVI: “It is necessary to work with greater commitment at all levels so that the right to health is rendered effective, favoring access to primary health care…Justice in health care should be a priority of governments and international institutions” and “Justice requires guaranteed universal access to health care”.

USCCB: “Reform efforts must begin with the principle that decent health care is not a privilege, but a right and a requirement to protect the life and dignity of every person. All people need and should have access to comprehensive, quality health care that they can afford, and it should not depend on their stage of life, where or whether they or their parents work, how much they earn, where they live, or where they were born. The Bishops’ Conference believes health care reform should be truly universal and it should be genuinely affordable”.

What does this mean in practice? It means that we cannot simply assume people are responsible for their own healthcare, or that of their own family, oblivious to the needs of others. It means that we, as a society, have mutual obligations toward each other in this area, based on the principle of solidarity. It means that the governing authorities must provide enough help for all people to get the healthcare they need, based on the principle of subsidiarity.

In modern economies, there are really only two broad ways of attaining universal healthcare at reasonable cost. First is single payer – simply pool the entire population and spread the risk widely, so that the young and the healthy are subsidizing the old and the infirm, secure in the knowledge that they too will be helped in their hour of need. It is a social bond of justice. The second way to do it is through private insurance provision, again by pooling the risks among large segments of the population. But this needs proper regulation so that insurers cannot deny care or discriminate against those who need the most help. It also needs some form of mandate to make it work, as otherwise the social bond would be cut – younger and healthier people will opt out, leaving a much sicker and much more expensive pool. It won’t work.

There really aren’t any other viable options. Studies show the same thing: the Republican approach to health care reform, based on some form of individual subsidy without any change to the structure of the market, fails to make any dent in the number of uninsured. There is a good reason for this – it insists on making people responsible for their own care, which leaves those in most need high and dry. Of course, we can make this problem go away by throwing unlimited resources at it. But we do not have this luxury.

And so we are left with just two options – single payer, and regulated private provision. In very simple terms, the Affordable Care Act follows the latter course. It needs the individual mandate to make it work.

But it is precisely this mandate that drives a sharp wedge between the Catholic view of access to healthcare as a social bond of justice, and the more libertarian view which stresses individual responsibility and freedom from government compulsion. This is the defining issue.

And yet, when I listen to some of the questions and assertions of the Catholic Supreme Court justices on the individual mandate, it seems that they are far more influenced by the libertarian/ Calvinist position than the Catholic position. Consider just a few examples:

Alito: “Isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else?”

Roberts: “But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you’re requiring people who are not — never going to need pediatric or maternity services to participate in that market.”

Scalia: “Well, don’t obligate yourself to that” (in response to the statement that “getting health care service … [is] a result of the social norms to which we’ve obligated ourselves so that people get health care”)

Make no mistake. If they follow this return to pre-New Deal laissez-faire constitutionalism, it will be judicial activism of the highest order. It will be a return to an erroneous affirmation of autonomy that we thought we had left behind. We should remember our history. It was exactly this approach that was opposed by the Catholic Church at the time, which emphasized the right of the worker over the “virtue” of free exchange. It was the Catholic Church that came up with the revolutionary Program for Social Reconstruction in 1919, which remains pretty radical (and unfulfilled) today.

At the end of the day, striking down this law or this mandate will prevent up to 32 million people from accessing affordable healthcare. It will mean that the only constitutionally viable option left on the table is single payer, which is a political non-starter. And just as in cases like Roe v. Wade, this decision will lie on the consciences of the Supreme Court justices, no matter how much they hide behind theoretical constitutional niceties.

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