If more Americans sought care abroad, it wouldn’t just save them money; it could also help control medical costs at home. Medical tourism can be considered a kind of import: instead of the product coming to the consumer, as it does with cars or sneakers, the consumer is going to the product. More medical tourism would increase free trade in medical services, something there has not been much of in the past. The U.S. has been religious about breaking down barriers to free trade, especially in manufacturing and service industries, exposing ordinary workers to foreign competition. But health care has been insulated from the forces of globalization. This has been great for hospitals and doctors, but less good for consumers. It’s one reason that the cost of health care has risen so much faster than that of almost everything else.
Now, maybe the court has been wrong all this time. Maybe the federal government’s authority under the Commerce Clause is much narrower. Maybe that authority doesn’t extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers.
Basically anything the government does that has ever been justified by the Commerce Clause will be open to challenge. For the sake of their own sanity and summer recesses, the justices ought to proceed cautiously.
Conservatives also ought to pause and consider all the lectures they have delivered over the past half-century about the need for judicial restraint. Whether authorized under the Commerce Clause or not, all of these laws — including Obamacare — were enacted by the democratically elected institutions of government. For the Supreme Court to call them all into question would be a power grab far beyond anything the court has attempted during the long era of conservative griping on this point.
Whenever liberals argue stare decisis, conservatives understandably get suspicious. In theory, it’s a pretty conservative doctrine. It says, things as they are should stay as they are. In practice, conservatives complain, it works like a ratchet: Liberals, when they’re in control, invent new rights, and then conservatives, under stare decisis, are supposed to do nothing about them when their turn comes. But the fact that courts have been upholding legislation under the Commerce Clause for seven decades with virtually no debate does make it seem unlikely that the whole thing has been a giant constitutional misunderstanding.
The centerpiece of the case against Obamacare is the requirement that everyone buy some kind of health insurance or face stiff penalties—the so-called individual mandate. It is a way of moving toward universal coverage without a government-run or single-payer system. It might surprise Americans to learn that another advanced industrial country, one with a totally private health care system, made precisely the same choice nearly 20 years ago: Switzerland. The lessons from Switzerland and other countries can’t resolve the constitutional issues, but they suggest the inevitability of some version of Obamacare.
Switzerland is not your typical European welfare-state society. It is extremely business-friendly and has always gone its own way, shunning the euro and charting its own course on health care. The country ranks higher than the U.S. on the Heritage Foundation’s Index of Economic Freedom.
Twenty years ago, Switzerland had a system very similar to America’s—private insurers, private providers—with very similar problems. People didn’t buy insurance but ended up in emergency rooms, insurers screened out people with pre-existing conditions, and costs were rising fast. The country came to the conclusion that to make health care work, everyone had to buy insurance. So the Swiss passed an individual mandate and reformed their system along lines very similar to Obamacare. The reform law passed by referendum, narrowly. The result two decades later: quality of care remains very high, everyone has access, and costs have moderated. Switzerland spends 11% of its GDP on health care, compared with 17% in the U.S. Its 8 million people have health care that is not tied to their employers, they can choose among many plans, and they can switch plans every year. Overall satisfaction with the system is high.
The most striking aspect of America’s medical system remains how much of an outlier it is in the advanced industrial world. No other nation spends more than 12% of its total economy on health care. We do worse than most other countries on almost every measure of health outcomes: healthy-life expectancy, infant mortality and—crucially—patient satisfaction. Put simply, we have the most expensive, least efficient system of any rich country on the planet. Costs remain high on every level. Recently, the International Federation of Health Plans released a report comparing the prices in various countries of 23 medical services, from a routine checkup to an MRI to a dose of Lipitor. The U.S. had the highest costs in 22 of the 23 cases. An MRI costs $1,080 here; it costs $281 in France.
In 1963, Nobel Prize—winning economist Kenneth Arrow wrote an academic paper explaining why markets don’t work well in health care. He argued that unlike with most goods and services, people don’t know when they will need health care. And when they do need it—say, in the case of heart failure—the cost is often prohibitive. That means you need some kind of insurance or government-run system.
Now, we could decide as a society that it is O.K. for people who suddenly need health care to get it only if they can pay for it. The market would work just as it works for BMWs: anyone who can afford one can buy one. That would mean that the vast majority of Americans wouldn’t be able to pay for a triple bypass or a hip replacement when they needed it. But every rich country in the world—and many not-so-rich ones—has decided that its people should have access to basic health care. Given that value, a pure free-market model simply cannot work.
The Swiss and Taiwanese found that if you’re going to have an insurance model, you need a general one in which everyone is covered. Otherwise, healthy people don’t buy insurance and sick ones get gamed out of it. Catastrophic insurance—covering trauma and serious illnesses—isn’t a solution, because it’s chronically ill patients, just 5% of the total, who account for 50% of American health care costs. That’s why the Heritage Foundation, a conservative think tank, came up with the idea of an individual mandate in the 1980s, proposing that people buy health insurance in exactly the same way that people are required to buy car insurance. That’s why Mitt Romney chose this model as a market-friendly system for Massachusetts when he was governor. And that’s why Newt Gingrich praised the Massachusetts model as the most important step forward in health care in years. They have all changed their minds, but that is about politics, not economics.
In 2008, Congress overwhelmingly passed, and President George W. Bush signed, the Genetic Information Nondiscrimination Act. Ron Paul was the lone dissenter. The legislation bars insurers from denying coverage or raising premiums on individuals who show a genetic predisposition toward particular diseases. And in doing, it armed a time bomb beneath the health-care industry.
Eventually, genomic testing will be a powerful predictor of future illness. And it raises the potential that young people will get themselves tested and then purchase insurance based off the result. So those with a clean genomic result might go for a cheap catastrophic plan, while those with a high risk of developing pricey illnesses will opt for more comprehensive insurance.
The result would be, in insurance terms, an “adverse-selection death spiral,” as the healthy opt out of expensive insurance, the sick opt into it, and premiums spin out of control.
The policy that solves this problem is an individual mandate, or Medicare-for-All, or some other approach that forces the healthy to insure themselves alongside the sick. In its absence, there’s no way to make a risk-selection model work for the health insurance industry, as consumers will be armed with detailed information about their health risks that insurers are legally prohibited from pricing into their insurance premiums.
Before the compromise, the spokesman for the U.S. Conference of Catholic Bishops went even further, arguing that entirely secular corporations, if owned or run by faithful Catholics, should be able to exclude contraception from their employees’ health-insurance coverage. “If I quit this job and opened a Taco Bell,” he declared, “I’d be covered by the mandate.” And even that would be unacceptable.
So Catholic doctrine should, according to the bishops’ spokesman, also apply to non-Catholics—even if they are merely selling burritos.
This kind of rhetoric is not about protecting religious freedom. It is about imposing a particular religious doctrine on those who don’t share it as a condition for general employment utterly unrelated to religion at all. And if that is the hill the Catholic hierarchy and evangelical right want to fight and die on, they will lose—and lose badly. Which may in part be why the American bishops, in responding to Obama’s compromise, suddenly took a much more restrained tone. Contraception is popular. Even in conservative Mississippi, a recent ballot initiative to amend the state constitution to ban the morning-after pill failed badly at the polls. If this issue won’t work for the GOP in Mississippi, they’ll have a hard time winning a general election over it. And if the bishops think opposing Obama’s compromise will rally Catholics to their cause, they are even more out of touch than they realize. This will indeed become a wedge issue—between the bishops and their flocks. Yes, finally a social wedge issue that helps Democrats, not Republicans.
There was a time not so long ago when Catholics and other Christians weighed various moral claims to find a balance. Sometimes, the lesser of two evils was preferable. For centuries, for example, Catholic theologians, including the greatest, Thomas Aquinas, argued that human life begins not at conception but at some point in the second trimester. For centuries the Catholic Church allowed married priests. For centuries Catholics believed that extending the end of life by extreme measures like feeding tubes was a violation of natural death, which Christians of all people should not be afraid of. But this ancient, moderate, pragmatic reasoning has been rejected by the last two popes, who have increasingly become rigid, fundamentalist, and hostile to prudential balancing acts in the real, modern world we live in. Their radical fundamentalism—so alien to the spirit of the Second Vatican Council and to so many lay Catholics—has discredited the core priorities of Christianity, failed to persuade their own flock, and led to increasing politicization. And the obsession among Catholic and evangelical leaders with an issue like contraception stands in stark contrast to their indifference to, for example, the torture in which the last administration engaged, the growing social inequality fostered by unfettered capitalism, the Christian moral imperative of universal health care, and the unjust use of the death penalty. That’s why younger evangelicals are also alienated. They want to refocus on issues of the poor, prison rape, human trafficking, and the kind of injustices Jesus emphasized, rather than on these sexual sideshows the older generation seems so obsessed with
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