By Lambert Strether of Corrente.
For Obama watchers, it seem ludicrous to imagine that he has any concern for rights whatever, in particular for the Fourth and Fifth Amendments. Be that as it may, Obama has clearly stated that health care is a right, so I’m going to take him at his word. Here he is in debate during Campaign 2008:
BROKAW: Quick discussion. Is health care in America a privilege, a right, or a responsibility?
First, as in retrospect it is obvious Obama would do, he attempts to evade:
OBAMA: Well, why don’t — why don’t — let’s talk about this, Tom, because there was just a lot of stuff out there.
Brokaw calls him back, and Obama answers:
BROKAW: Privilege, right or responsibility. Let’s start with that.
OBAMA: Well, I think it should be [note weasel "should" and not "is"] a right for every American. In a country as wealthy as ours, for us to have people who are going bankrupt because they can’t pay their medical bills — for my mother to die of cancer at the age of 53 and have to spend the last months of her life in the hospital room arguing with insurance companies because they’re saying that this may be a pre-existing condition and they don’t have to pay her treatment, there’s something fundamentally wrong about that.
And here is Obama again on September 26, 2013:
OBAMA: In the wealthiest nation on Earth, no one should go broke just because they get sick. In the United States, health care is not a privilege for the fortunate few, it is [note change from "should"] a right.
Presumably, for Obama, ObamaCare makes the difference between 2008′s “should” and 2013′s “is.” I don’t have a sophisticated understanding, or a theory, of rights. (Readers?) So I’m going to turn to one of the founding texts of America’s civil religion, the Declaration of Independence (slight alterations in brackets):
“We hold these truths to be self-evident, that all men [people] are created equal, that they are endowed by their Creator [of Choice, If Any] with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
So from the Declaration, we have these take aways. Rights (1) must be equally applied to all people, (2) cannot be transferred from one person to another (“alienated”), and (3) an example of a right is “life.” It also seems that rights are not absolute, in that (for example) the State can take life for grave crimes.
So, if health care is a right, how is ObamaCare doing on delivering it? My answer is: Very badly.** First, I’ll look at whether ObamaCare delivers the right of health care equally to all people; then I’ll look specifically how the use case the Framers chose as an example of a right: That to “life.” (Here let me note that this is not a “right to life” post, as both sides of that permathread in American politics understand the phrase.*)
ObamaCare delivers health care rights unequally by state. The citizens of Libby, MT — their Senator, Max Baucus, was the driver for ObamaCare — are, uniquely, eligible for Medicare. They need health care, certainly, because their town was contaminated with asbestos. I’m glad they’re on Medicare; I don’t want them to suffer. But we all need health care equally; it’s a right!
ObamaCare delivers health care rights unequally by city and county. A citizen of Aroostock County, ME pays $1,000 more than a citizen of Portland, ME for the same coverage. How can those two citizens be said to have equal access to health care? In Covered California (one of ObamaCare’s state exchanges) rates vary across 19 unequal pricing regions. If health care is a right, as Obama agrees, how does that make any sense? Do I have less or more right to free speech because I live in Penobscot County and not Piscataquis or Cumberland?
ObamaCare delivers health care rights unequally by income. If your income is less than 138% of the Federal Poverty Level, you’re forced (no choice) into Medicaid, which is known for its ability to say no to care. Between 138% and 400% you’re segregated into the Exchanges, with high co-pays, high deductibles, and thin networks. Over 400%, you can buy as much care as you want And people “on the bubble” at 138% and 400% plus or minus one dollar have the privilege or pain of gaming their income to get into or out of Medicaid, or into or out of the Exchanges. In fact, ObamaCare is a gigantic Rube Goldberg device for sorting people into buckets, by income, and the more money you have, the better care you get. How can such a system claim to treat health care as a right, a perspective that Obama endorses? Do poor people have less right to avoid “cruel and unusual punishment” than rich people? No? Do poor people have less right to be “secure in their papers and effects” than rich people?*** If no and no, why doesn’t the right to health care work the same way?
ObamaCare delivers health care rights unequally by employment. Politics and drafting errors led to the debacle of Congressional staffers no longer receiving subsidies from their employers (Congress) for their health insurance. That was bad, and Obama intervened personally to “finagle a workaround” to help them. Which is great; I don’t want the staffers to suffer. So, if health care is a right, how come Obama doesn’t intervene personally to “finagle a workaround” for the unions whose Taft-Hartley plans got trashed? (And please don’t tell me about the rule of law; this is the Obama administration, after all.) And again, if health care is a right — a proposition Obama explicitly endorses — how come people who get their health care through employer-based insurance get better networks, lower co-pays, lower deductibles, and better coverage generally? It’s as if Amendment III — “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner” — only applied to people whose houses are upscale, while people who rent or live in trailers have soldiers sleeping on couches and the floors!
ObamaCare delivers health care rights unequally by age. Children under 26 get to go on their parents’ plan. Well and good; I don’t want them to suffer. But why the age cut-off? The logic is exactly the same as the 138% and 400% income cut-offs; how is it that people’s right to health care changes at some arbitrary limit? Why not 25? Why not, for Harry Potter fans, 29 and 3/4? From a public policy perspective, there may be some reason. From the rights-based perspective that Obama endorses, there’s no reason at all. And the same thing goes for Medicare; 65 is just as arbitrary a cut-off point as 26. Why doesn’t Medicare begin at 64? Or 62? Or… 0? Finally, there’s the lovely MERP clawback: If you’re over 55 and forced into Medicaid, Medicaid is a collateral loan, and a death tax on your estate. So if health care is a right, as Obama has said it is, how come the lucky duckies between 55 and 65 may be forced to trade their homes for it?
ObamaCare delivers health care rights unequally by personal habits. Finally, the smoking penalty:
Government figures show smokers’ premiums could run as much as 50 percent higher than regular individual rates. The difference could amount to an effective smoking penalty of $1,500 or more each year.
I understand the “nudge theory” rationale for this. But if health care is a right, as Obama says it is, then ObamaCare is not where the nudge should take place; rights are for all people equally, and are not alienated because of personal characteristics or habits. Suppose we waived the right to not to be “compelled in any criminal case to be a witness against” one’s self for introverts, reasoning that they wouldn’t talk anyhow? And doesn’t the smoking penalty really turn a right into a privilege — something that authority grants only on the grounds of good behavior? And where does it end? If Mike “Mayor-for-Life” Bloomberg ever, heaven forfend, becomes President, would he be able to raise premiums for soda drinkers? Under the logic of ObamaCare, he would. Under Obama’s concept of health care as a right, he could not.
Finally, ObamaCare delivers life itself unequally, as Joe Firestone (and I) have shown. ObamaCare, even when fully implemented, will cover at best half the uninsured; the resulting excess deaths, at a rate of 1,000 for every million than in the general population, could be as many as 40,000 by 2017. In any other context, numbers like those would be regarded as a humanitarian tragedy, lesser evilism or no. Granted, the right to health care is not an absolute right, just like the right to pursuit of happiness, or indeed liberty, but 40,000 denied that right seems like a needlessly high number, and for no reason (other than, perhaps, profit). If health care were truly delivered as a right, those excess deaths would be closing in on zero.
Do Obama, Democrats, progressives, and the political class truly accept — as Obama says he accepts — that health care “is” a right? If they do, can ObamaCare be saved? My answer is no, and the conversation that needs to begin October 2 is how to replace it as soon as possible.*****
NOTE * Most of this talking points were worked out in the series “ObamaCare’s Relentless Creation of Second Class Citizens” here, here, here, here, here, and here, and in many, many posts and comment threads at Corrente.
NOTE ** Nor is this post a meta post about why this post is not a post about the “right to life,” as both sides of that permathread in American politics understand the phrase.
NOTE *** Granted, I idealize.
NOTE **** Heartbreakingly, we already have a working single payer system in the United States; even the TPers are for it! If Obama didn’t want to back HR 676, he could have backed Teddy Kennedy’s idea to gradually lower Medicare’s eligibility age ’til all were covered. But no. Here I should say that I’ve taken the point that Medicare is not a perfect program, and that the rentiers have inserted their tiny chitinous sucking mandibles into that program as well, adding fees and complexity. So, no, Medicare for All would not be ponies and rainbows. But at least, since health care is a right, equal access to all would be achieved, and with single proven system architecture. Moreover, the insurance companies would no longer be at the heart of the program. So making Medicare better gets easier.
***** Yes, I know ObamaCare will help some. That’s why the Republican effort to defund it is both vicious and terminally stupid. However, I want all to be helped, not just some, and equally, because — as Obama says — health care is a right.