Today’s 2-1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress’ powers under the Commerce Clause.
At the same time, Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.
The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noncommercial activity nearly always has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships. The district court rulings in favor of the mandate all embraced some version of the “health care is special” argument [or at least the argument that not purchasing health insurance is "economic activity"] in order to avoid this slippery slope problem (albeit, unsuccessfully, in my view). By contrast, Martin and Sutton take us all the way to the bottom of the hill in one fell swoop.
Obviously, Congress will not enact every conceivable harmful mandate that the Martin-Sutton reasoning would authorize. But the risk of abuse is far from purely theoretical, since many interest groups can and will lobby for laws that compel people to purchase their products.
The sweeping congressional power authorized by Martin and Sutton’s opinions makes a hash of the text of the Constitution, which gives Congress the power to regulate interstate and foreign commerce, not a blanket power to mandate anything that has a “substantial” economic effect. It also makes most of the rest of Congress’ Article I powers superfluous. For example, there would be no need for a separate power to tax. After all, failure to give the government some of your money voluntarily surely has substantial economic effects. Therefore, virtually any tax could be imposed through the Commerce Clause, without the need for a separate Tax Clause. Similarly, failure to serve in the armed forces surely has substantial economic effects. The Commerce Clause therefore authorizes Congress to impose a draft and purchase military equipment, thereby making the power to raise armies superfluous.
The Sixth Circuit ruling would be defensible if it were compelled by Supreme Court precedent. However, both Martin and Sutton admit that the Supreme Court has never previously ruled on a case involving a mandate of this type, and has also never previously addressed the issue of whether the Commerce Clause authorizes regulation of inactivity. Therefore, it’s hard to defend their reasoning on the grounds that it was somehow compelled by precedent.
Martin and Sutton also both make the argument that a health insurance mandate is special case because everyone will use health care at some point in their lives. This part of their reasoning adds little to previous statements of the same argument, which I criticized here. It also does not vitiate the radical implications of their rejection of the activity-inactivity distinction, since neither actually concludes that Congress’ power to enact the mandate depends on health care’s supposedly special nature.
Much of Judge Sutton’s Commerce Clause argument relies heavily on the notion that the plaintiffs’ case must fail as a “facial” challenge to the mandate because some possible applications of the law are constitutional even under his interpretation of the plaintiff’s own theory of the case. He leaves the door open to “as-applied” challenges, suggesting that the mandate may still be unconstitutional as applied to people who have not previously purchased health insurance. I may take up this aspect of Sutton’s argument in a follow-up post.
Finally, it’s worth noting that Sutton and Judge Graham both reject the government’s claim that the mandate is a valid exercise of Congress’ power to tax, instead concluding that it is a penalty. Judge Martin avoids addressing this issue directly, but does hold that the mandate is a penalty in the section of his opinion discussing standing. So far, the tax argument has been rejected by every judge who has ruled on it, including those who have upheld the law on other grounds.
anon says:
Legislation that’s too big to fail.
June 29, 2011, 6:57 pmdimocracy says:
To what can’t the concepts of non-consumption as activity, free-riders and negative externalities be applied, in order to control citizens, grow the government, and EUropeanize* us into debt and
irrelevance?
*”You’re peonized” is basically what this decision says.
June 29, 2011, 7:08 pmSteve says:
I’ve noticed that many of the critiques of the decision do nothing more than restate the author’s prior arguments, not even bothering to address the logic with which today’s opinion addresses those arguments. This post is a good example.
June 29, 2011, 7:12 pmJon Shields says:
I don’t think you are correct at all about the rationale the court used for upholding the mandate. In fact, I think the opinion says exactly the opposite of what you argue it says.
The Martin opinion says, over and over again, that everyone is active in the healthcare market, so the behavior here is not inactivity. Rather, it is activity. In fact, he specifically says that if there were a firm constitutional bar to regulating inactivity, the mandate would still be valid, because everyone is active in the healthcare market.
“Thus, although there is no firm, constitutional bar that prohibits Congress from placing regulations on what could be described as inactivity, even if there were it would not impact this case due to the unique aspects of the health care market that make all individuals active in the market.” [Emphasis added.]
Martin continues for pages discussing how there is no inactivity here.
Sutton is no different.
“In this context, the notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident.”
And:
“No one is inactive when deciding how to pay for health care, as self insurance and private insurance are two forms of action for addressing the same risk.”
In other words, while Martin or Sutton (or both) might find the activity/inactivity distinction not Constitutinoally relevant, their rationale for upholding the mandate does not rely on such a broad holding at all. It relies specifically on the uniqueness of the healthcare market — uniqueness that implies that everyone is actually active in the healthcare market (as opposed to other markets, like broccoli). In this respect, this opinion is little different than any other opinion upholding the mandate so far.
No opinion upholding the mandate (including both Martin’s opinion and Sutton’s opinion) has definitively answered the activity/inactivity question, because all of them have determined that even if answered in the most favorable way for the plaintiffs, this is activity here (not inactivity).
June 29, 2011, 7:22 pmJaxemer11 says:
Sutton cites Wickard when talking about the action/inaction distinction. I think his reasoning is sound with regard to whether the implications of Wickard make it difficult to sustain the action/inaction distinction.
Whether you agree with his thoughts on Wickard or not, assume for the sake of argument that Wickard would prevent the court from relying on an action/inaction distinction. Could Sutton possibly be framing his opinion in such a way to rest it directly on Wickard? I think many conservatives believe Wickard itself is bad precedent, but Sutton can’t overturn Wickard.
Could he be setting Wickard itself up for reversal by the court? Would Kennedy go for that?
June 29, 2011, 7:23 pmJon Shields says:
To sum up Martin’s and Sutton’s opinions (and all the others upholding the mandate), they argue that the activity/inactivity distinction is irrelevant to this particular case. Why? Because passing along the costs of your risk-taking to others in the market is activity, not inactivity.
The same cannot be said for other essential services, such as food or shelter (since one’s failure to get food or shelter is not risk, and does not transfer costs to others in the market). It also cannot be said for other forms of insurance, since again, the cost of the risk is not transferred to others in the market. If one’s house floods without flood insurance, the insurance company simply doesn’t pay the homeowner anything (as opposed to the healthcare market, where the person is always treated as a matter of common law and EMTALA, such that costs are passed on).
In fact, the principle here (passing on the costs of one’s risk to others in the market is activity) doesn’t really apply to any other market. That is why so many courts have upheld the mandate. They have not relied on the idea that the government can actually regulate inactivity (regardless of whether or not they think, in a different case, that Congress can reach inactivity). Congress simply does not do so here.
June 29, 2011, 7:27 pmClare says:
the mandate not only sets a precedent that threatens future abuse, it is in itself an abuse. the argument that the mandate is not regulating ‘inactivity’ because everyone will, at some point in time, participate in the “healthcare market” by obtaining the services of a doctor is too broadly drawn and is specious as hell. i’m a cash patient. my participation in the “healthcare market” is not a participation in the healthcare *insurance* market. my activity or inactivity in the healthcare insurance market no more effects it, than my purchasing or not purchasing a house affects the home owners insurance market (assuming carrying such is not mandatory for home owners).
if i were to obtain emergency medical services and be unable to pay for them, a provider would take the loss. the only way that my ‘negligence’ (as it’s been termed by our lovely President) affects the healthcare insurance market, is if the government is providing “insurance” to indigents. in that instance, it is the *government’s* activity, not mine, that substantially affects the healthcare insurance market.
June 29, 2011, 7:28 pmepluribus says:
I’m unclear to me why you think that an industry that operates all over the country, providing healthcare and healthcare insurance to almost every American from birth (or even before, in the case of prenatal care) to death, that costs nearly 20 percent of GDP, that effects lives and deaths on a daily basis, is not “activity.” To me, it is clearly “activity.” Most of the healthcare is paid for through insurance, some through out of pocket expenditures, some through existing government services. Clearly this is interstate commerce, and clearly Congress has the power to regulate it. Congress is not requiring that people use healthcare–they are already using it and making decisions about how they will pay for it. Congress says that specified people (those who owe income tax, those who don’t have religious objections, those who aren’t already covered by insurance obtained by them or their parents, etc.) must maintain minimum levels of insurance. To me, it is clear that this is a proper regulation of an industry that iis clearly a massive “activity.”
June 29, 2011, 7:29 pmJaxemer11 says:
Further, what part of the Constitution gives rise to the action/inaction distinction? Don’t we as conservatives complain when activist judges come up with phony distinctions that don’t have a basis in the text or history of the Constitution? This seems like the exact same thing. I don’t see anything in the Commerce Clause or anywhere else that says we should treat action different than inaction (whatever that might be).
June 29, 2011, 7:30 pmepluribus says:
I’m beginning to see that the anti-mandate crowd has blinders on, and is determined to keep them on. Judge Sutton looked at this question without blinders. He has offended his conservative friends. The terms of opprobrium are already being rolled out–”weakness,” “blatant.”
June 29, 2011, 7:33 pmepluribus says:
What part of this complaint could not be addressed to the former Republican governor of Massachusetts and his “Romneycare”? Or is it your position that making you do something you don’t want to do is OK at the state level, just not at the federal level?
June 29, 2011, 7:37 pmnoblesse says:
I read that as saying that Sutton should have acted like a politician: decide whether he thinks the policy is good or bad and rule for or against accordingly. Only then would he put on his judge’s hat, and issue a contrary opinion only if precedent required it. While there is no question that some judges do this some of the time, it’s not something that should be encouraged. Logically applying precedent, as Judge Sutton did here, is important to the rule of law and judicial legitimacy.
Put another way, it was essentially Raich and Wickard that “opens the floodgates to an unlimited congressional power to impose mandates of any kind,” not this decision.
Also, if the concern about mandates of all kinds is so compelling, why haven’t we seen them proliferate at the state level? As Judge Sutton pointed out, there is already an unquestionably constitutional mandate to purchase health insurance in Massachusetts.
June 29, 2011, 7:41 pmNick056 says:
For once, Ilya and I agree. Wickard and Raich are terrible decisions.
June 29, 2011, 7:44 pmkvm says:
Yet every Dem apointee who has concluded the mandate is constitutional is NOT evidence of “blinders”? Try to give the opponents the benefit of the doubt. The only easy answers are the ones you presuppose
June 29, 2011, 7:45 pmnoblesse says:
Everyone opposed to the mandate–definitely including the Conspirators–ought to answer that question.
June 29, 2011, 7:53 pmsloopl3 says:
Some have had blinders, yes. Others have answered the ‘inactivity/activity’ non-doctrine and determined it is a flawed test, and that the ACA is constitutional – just like Sutton. I think what the poster hinted at is that a heavy-weight crossing over suggests that his motives are not political, thus casting doubt on the claim that all liberals have upheld the ACA for political reasons while conservatives have struck it down purely on constitutional principles.
The only thing being presupposed by anyone is that activity/inactivity is a recognized test under the commerce clause. Still waiting for that cite.
June 29, 2011, 7:57 pmpublic_defender says:
Somin writes:
Which side has Supreme Court precedent on its side? Did you read Judge Graham’s dissent? It was largely based on citations to dissenting an concurring opinions. When a judge has to rely on dissents to make a point, it’s a pretty good sign that the judge is not following the law as it currently exists.
June 29, 2011, 8:01 pmjrose says:
Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect
I don’t think we read the same opinions. Particularly for Sutton, how could he entertain as-applied challenges if he accepted what you think he has accepted.
Martin and Sutton also both make the argument that a health insurance mandate is special case because everyone will use health care at some point in their lives. This part of their reasoning adds little to previous statements of the same argument, which I criticized here
Sutton introduced a new notion – managing risk – as the way to distinguish between health care and other industries. Your prior discussion didn’t deal with this nuance.
June 29, 2011, 8:02 pmkvm says:
So somehow we go from 1 conservative who disagrees with the rest of his political compadres is taken as evidence that those who genuinely disagree have blinders? That is a very large leap and one I would not make were it to happen the other way
June 29, 2011, 8:07 pmJozxyqk says:
It’s an absolute shocker that–given the terrible implications of upholding the federal govenment’s ability to mandate activity from inactive people–not a single one of the 50 states (which indisputably have this power) has any laws that mandate universal broccoli eating or gym membership or anything else of that nature.
June 29, 2011, 8:08 pmMax says:
“To sum up Martin’s and Sutton’s opinions (and all the others upholding the mandate), they argue that the activity/inactivity distinction is irrelevant to this particular case. Why? Because passing along the costs of your risk-taking to others in the market is activity, not inactivity.”
The only reason the health care costs of an uninsured can get passed on to others is because our government has passed a law requiring hospitals to treat anyone regardless of their ability to pay. Now anyone who self insures is deemed a free-rider. If it were not for the must treat mandate, there would be no need for the must insure mandate.
There are some who do not want health insurance or health care because of their religious beliefs. Still others don’t like to pay for something they don’t need. Somehow we got by in this country for over 200 years without health insurance. Now it is being forced on everyone without any constitutional basis.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
What a quaint concept.
June 29, 2011, 8:13 pmB-Rob says:
You stole my thunder. Next question: how long before Jeff Sutton is described as a RINO?
June 29, 2011, 8:19 pmyankee says:
Ilya:
The arguments against the mandate purport to be based on commerce clause issues that do not apply to the states. So where are all the state purchase mandates? (For that matter, where are there any state purchase mandates, except Romneycare?)
June 29, 2011, 8:25 pmHazel Meade says:
I think a key problem is the notion that everyone is automatically in the healthcare market by virtue of being born. Whether or not an individual is likely to consume health care resources at some point in the future, the western moral tradition has not usually regarded the involuntary act of being born as entailing the assumption of a positive duty to act, except in extreme and narrow circumstances such as national defense. When it comes to national defense, we’re talking about defense of the entire social contract itself, the constitution and the form of government, against existential threats.
But in this case, we’re talking about imposing positive duties to act, merely for being born, just because it is convenient to the way the government wishes to regulate the economy.
June 29, 2011, 8:25 pmB-Rob says:
The good professor wrote:
No, this is not what they said. Both said that the activity/inactivity distinction is nonsense. Sutton’s example, taken from Raich, is where Miss Raich sells a house and leave 150 marijuana plants in the basement. The drug possession statute would penalize the inactivity of continuing to possess those 150 plants, even if you did not plant them, water them, or sell them yourself. They simply did not buy the distinction because even Wickard turned on an inactivity, i.e., the inactivity in the grain market. Lastly, the Sutton opinion pointed out that inactivity is permitted; you just then have to pay the surcharge/excise whatever the non-tax tax was called, for those who do not have insurance coverage.
June 29, 2011, 8:27 pmmemomachine says:
Hmmm.
So far I have yet to see anything that makes the phrase “shoot the lawyers” any less practical.
June 29, 2011, 8:31 pmClare says:
John Shields,
It is not necessary for me to participate in the healthcare INSURANCE market, in order to participate in the market for health services (i.e. doctors, hospitals, purchase drugs). Kindly explain to me how you can conflate participation in the healthcare market (in the broad sense of obtaining services) with participation in the healthcare insurance market.
As far as indigent and uninsured patients go: they do not voluntarily participate in the healthcare insurance market. According to our President, that’s the problem. The only way that indigent and uninsured patients cause losses to the healthcare insurance market, is because they government (NOT THE PATIENT) voluntarily provides “free” insurance and the like.
Unless you can explain why anyone should conflate cash participation in the market with insurance participation, your argument utterly fails.
June 29, 2011, 8:38 pmNick056 says:
B-Rob,
Orin raised a similar example — the inactivity/activity distinction as applied to someone dropping drugs in your hand and running away. This is a paraphrase, but the anti-mandate commenters found “activity” in passively accepting the drugs someone dropped into your hand.
June 29, 2011, 8:40 pmyankee says:
The Western legal traidition, sure, but there’s no way this is true of the Western moral tradition. Or is the Christian mandate to do unto others as you would have them do unto you not a call to positive action?
June 29, 2011, 8:40 pmepluribus says:
You are really misstating the facts. Being born, standing alone, does not trigger any duty under ACA. Minors are covered by their parents’ insurance under ACA. ACA doesn’t require that they obtain insurance. Yet they were born. Adults are subject to the minimum insurance requirement only if they have taxable income and do not have other healthcare (eployer-provided insurance, VA healthcare, Medicare, Medicaid, etc.). Being born by itself means nothing unless you also want to stay live. Those who want to stay alive (almost all of us, I think) use healthcare services to help us do just that. Using healthcare is a near-universal activity in the United States. Payments for it consume almost 20 percent of GDP. Healthcare, obtaining healthcare insurance and, paying for healthcare in some other way all constitute an “activity,” not an “inactivity.” It is an interstate “activity” that has a vast national scope.
June 29, 2011, 8:42 pmKim says:
Your statement about “everyone will use healthcare at some point” is not exact true. It actually irritates me to no end. I’m amazed no one has brought up the Supreme Court ruling that every person has the right to refuse care, meaning some people may choose not to participate in the healthcare market. Some people are against surgeries, blood transfusions, transplants, and cancer treatments, etc. I know, because I’m one of them. My family already knows my wishes and has accepted them. I’m not too fond of doctors and rarely trust any of them. My opinion may be in the minority of most Americans, but it still deserves respect.
June 29, 2011, 8:43 pmAsher Steinberg says:
“I’m amazed no one has brought up the Supreme Court ruling that every person has the right to refuse care, meaning some people may choose not to participate in the healthcare market. Some people are against surgeries, blood transfusions, transplants, and cancer treatments, etc. I know, because I’m one of them. My family already knows my wishes and has accepted them. I’m not too fond of doctors and rarely trust any of them. My opinion may be in the minority of most Americans, but it still deserves respect.”
It sure does deserve respect, and I’m pretty sure that the act contains religious exceptions.
June 29, 2011, 9:10 pmJon Shields says:
I never said it was. I simply stated (as a summary of all the opinions upholding the mandate), that NOT having insurance creates risk that you will be treated without the ability to pay for it (untrue in every other market). It is that transferring of the cost of the risk to others, that is the activity. As Katyal kept saying, NO ONE can prove that they won’t be hit by a bus on their way out of the courtroom.
Under your reasoning, Congress couldn’t even require people who are not insured to post a bond (to prove that they could indeed pay for their inevitable treatment should they be hit by a bus). Because if Congress could require people to post a bond, that is only different than the mandate in means, and Congress gets substantial deference with regards to means. Congress can most certainly favor insurance over cash payment for healthcare services, because that is a MEANS decision. The only real question here is whether Congress can trigger anything on one’s decision to not insure for health risk, and if they can’t mandate then they can’t require a bond.
June 29, 2011, 9:23 pmJon Shields says:
If, right after you wrote that post, you walked outside and got hit by a bus, my guess is that you would be treated. An ambulence would certainly be called, and you would certainly receive some care. Not having health insurance (even if just for that) is passing on the costs of your risk to other people, and that is activity. It is unlike any other market, where if you were injured in some way (flood, etc), you would not necessarily be helped if you did not have insurance. The transfer of cost of the risk is the activity here.
However, even if this were not the case, and there were some people that could somehow have a zero risk of ever getting medical care, this doesn’t matter either. In Raich, the plaintiffs were not active in any market. That didn’t matter. Raich specifically held that Congress is not required to legislate with a scalpel — Congress can most certainly be overinclusive in constructing its regulatory scheme. So even in an alternative universe where someone could claim they had no risk of transferring the costs of care to others, such a challenge would fail.
I am not saying I don’t respect your decision (and others) to avoid medical care to the extent possible. This is a legal discussion — not one about personal preferences. In addition, the act specifically exempts people who want to avoid medical care to the extent possible for religious reasons.
June 29, 2011, 9:32 pmIlya Somin says:
I don’t think you are correct at all about the rationale the court used for upholding the mandate. In fact, I think the opinion says exactly the opposite of what you argue it says.
The Martin opinion says, over and over again, that everyone is active in the healthcare market, so the behavior here is not inactivity. Rather, it is activity. In fact, he specifically says that if there were a firm constitutional bar to regulating inactivity, the mandate would still be valid, because everyone is active in the healthcare market.
They said that, but they also said that Congress has the power to regulate even inactivity.
June 29, 2011, 9:52 pmHazel Meade says:
So what you are saying is that being alive, and wanting to stay alive, constitutes an “activity”.
June 29, 2011, 9:55 pmIlya Somin says:
Also, if the concern about mandates of all kinds is so compelling, why haven’t we seen them proliferate at the state level? As Judge Sutton pointed out, there is already an unquestionably constitutional mandate to purchase health insurance in Massachusetts.
An interesting question. Some states do have dubious mandates. The reason why there aren’t more is that people can “vote with their feet” against state governments. A state that enacted numerous oppressive or costly mandates would lose many of its businesses and taxpayers. Not so with the federal government.
June 29, 2011, 9:55 pmIspep Teid says:
Are you referring to “self-entertainment”?
June 29, 2011, 9:56 pmKim says:
The problem is that this is not a religious decision. It’s my own personal feelings. Although I give blood on occasion to others, I don’t like the idea of something foreign in my own body, so I would never accept a transfusion or a transplant if one was offered to me. I don’t like the idea of being cut, experiemented on and worked on or having the organs I was born with removed. That’s just me. This ruling has basically ruined my night. It seems no one cares about personal freedom or being in charge of your own destiny anymore! Just sad…
June 29, 2011, 9:57 pmIlya Somin says:
What part of this complaint could not be addressed to the former Republican governor of Massachusetts and his “Romneycare”? Or is it your position that making you do something you don’t want to do is OK at the state level, just not at the federal level?
Everyone opposed to the mandate–definitely including the Conspirators–ought to answer that question.
Easy. The Constitution gives the federal government only a limited set of enumerated powers. It imposes no such limitations on the states.
June 29, 2011, 9:57 pmHazel Meade says:
America wasn’t founded on Christian moral codes. The constitution is a political document that says nothing about religious or moral duties, and was never intended to.
June 29, 2011, 9:58 pmIlya Somin says:
Further, what part of the Constitution gives rise to the action/inaction distinction? Don’t we as conservatives complain when activist judges come up with phony distinctions that don’t have a basis in the text or history of the Constitution?
The relevant part of the text of the Constitution only gives Congress the power to regulate interstate commerce. That’s a far cry from allowing it to impose any mandate that might have a substantial economic effect. Moreover, it implies that there must be some preexisting interstate commerce going on for Congress to regulate. In my view, the presence of “economic activity” is only a necessary condition for congressional regulation under the Commerce Clause, but not a sufficient one (some economic activity is not interstate commerce).
June 29, 2011, 10:00 pmIlya Somin says:
If, right after you wrote that post, you walked outside and got hit by a bus, my guess is that you would be treated. An ambulence would certainly be called, and you would certainly receive some care. Not having health insurance (even if just for that) is passing on the costs of your risk to other people, and that is activity.
It is not my failure to purchase insurance but the government’s law requiring people to provide me with free treatment that “passes on costs” in this scenario.
In Raich, the plaintiffs were not active in any market. That didn’t matter.
Actually, Raich specifically held that the plaintiffs were engaged in economic activity (producing and consuming marijuana). The court defined economic activity as any action involving the production, consumption, or distribution of a commodity. Not having health insurance is neither production nor consumption, nor distribution.
June 29, 2011, 10:03 pmIlya Somin says:
I’m unclear to me why you think that an industry that operates all over the country, providing healthcare and healthcare insurance to almost every American from birth (or even before, in the case of prenatal care) to death, that costs nearly 20 percent of GDP, that effects lives and deaths on a daily basis, is not “activity.”
The health care industry is activity. Failure to purchase one of its products is not.
To me, it is clearly “activity.” Most of the healthcare is paid for through insurance, some through out of pocket expenditures, some through existing government services. Clearly this is interstate commerce, and clearly Congress has the power to regulate it. Congress is not requiring that people use healthcare–they are already using it and making decisions about how they will pay for it.
Some are using it, others are not. In any event, the mandate applies to everyone regardless of how much health care they have used or not used. If the mandate applied only as a condition of purchasing health care services (or of getting them for free by government mandate), the feds’ legal position would have been stronger. But, of course, a statute framed in that way likely could not have passed.
June 29, 2011, 10:06 pmrpt says:
That’s already happening and it’s come from your side.
June 29, 2011, 10:23 pmMark Field says:
The costs are passed on to the rest of us even if we leave your body lying in the street. We have to see it and observe your suffering (and clean up the blood). If you die and we don’t cart your body away, we suffer the risk of disease. Alternatively, we have the cost of disposing of your body.
You’ve neglected the most fundamental rule of libertarianism: TANSTAAFL.
June 29, 2011, 10:27 pmnoblesse says:
Care to give any examples of those dubious mandates? I don’t doubt that they exist; I’m just not familiar with them.
People absolutely can emigrate from the US. Also, is there any evidence that the “vote with their feet” issue has ever had an impact on a mandate issue in a state? No doubt the general principle has some effects on the composition of state governments, top to bottom, but surely it’s not so profound that no mandate issue could even reach the lobbying stage (particularly if, as you suggest, those nefarious rent-seekers have such a strong incentive to have them implemented).
June 29, 2011, 10:27 pmKim says:
I was in an accident when I was 20. They don’t just treat you right away. Hospitals have to get permission to treat (or at least the hospital
June 29, 2011, 10:29 pmI went to did). I had sign a paper stating that it was okay for them to touch me. Since it didn’t involve surgery, I okayed it. And that lame story, “taxpayer pay the cost of the uninsured” is not all the way accurate. I didn’t get insurance until I got my first real job in 2006. I was uninsured when I got in my accident in 2004, yet I managed to pay my bill while paying for college only making $6 an hour for 20 hours a week working in a cafeteria. Shocker! Hospitals don’t just treat and let you run free. They call you and send you bills until the thing is paid off! So, I just don’t believe it when people say the uninsured get off scot-free! Maybe healthcare and insurance are so high because everybody goes in there for every little bruise or sniffle. Did you ever think about that?
noblesse says:
But you oppose both the Massachusetts and the federal mandate on personal liberty grounds? Isn’t that a more significant concern for you?
Indeed, you admit that the federal government could structure the mandate to apply “only as a condition of purchasing health care services (or of getting them for free by government mandate)” and be on fairly solid constitutional ground. I assume you also agree that the federal government could constitutionally implement single-payer health care? I further assume that you would be equally if not more opposed to single-payer health care.
Are your federalism concerns in this case makeweight? (To be clear, that’s not to suggest that they’re illegitimate as a legal matter; I’m just skeptical that federalism as such has much to do with your positions. And selecting any valid legal arguments to support a preferred policy position is fine. I just think it bears mentioning when the legal arguments are basically distinct from the policy ones.)
June 29, 2011, 10:34 pmrpt says:
Are you taking the tyrant’s side or did you forget the context?
June 29, 2011, 10:35 pmc.s.b. says:
Just to ensure you’re answering the second question: you agree then that there’s no substantive due process challenge to the mandate?
June 29, 2011, 10:35 pmrpt says:
“Staying alive, staying alive….” Yes, being alive is an activity. Are you serious?
June 29, 2011, 10:41 pmc.s.b. says:
A few points. 1. When someone needs emergency medical care, hospitals and EMTs do not wait to secure permission to treat. Those patients are often unable to communicate a refusal of treatment. 2. Hospitals typically reduce fees to low-income patients, so the costs you paid may not have been all of them. 3. As Judge Sutton points out, virtually nobody is able to ‘self-insure’ a catastrophic medical emergency, which can cost over $100K. 3. Permitting you to either die or go bankrupt because you can’t pay an unexpected $100K medical bill affects commerce.
June 29, 2011, 10:43 pmKevin M says:
So, if someday drugs are legal and taxed, and Raich is used to force this new regulation regime on states and individuals, you could take this new definition of “activity” to mean that people could be forced to grow (or consume) pot. After all, their inactivity in this regard would affect commerce (and lower tax revenue).
June 29, 2011, 10:44 pmHazel Meade says:
Being alive is an activity that is regulatable under the commerce clause?
June 29, 2011, 10:57 pmBeing alive is interstate commerce?
c.s.b. says:
The anti-mandate argument that I find the least convincing is the “slippery slope.” I think Judge Sutton does a very good job of recognizing how healthcare is a unique market. I cannot think of any other product that it is virtually impossible to not consume during one’s lifetime.
June 29, 2011, 10:58 pmKim says:
Nobody asked me about my income status. Nobody even asked me if I had a job! They just sent me a bill 30 days later and I paid it month by month until it was paid off. I squeezed, worked extra hours in the summer and tighten my belt (yes that is possible on 150 a week believe it or not), and paid the thing off. Life wasn’t peaches and cream while I was paying it off, but I did it. Why is that so hard for someone to do? You receive a service, you should pay for it. If I can do that on 5300 a year while paying for school, I’m sure people can at least pay their bill while making much more than that. Why not pass a law requiring people who receive a service pay for said service and stop with all of these mandates?!
June 29, 2011, 11:02 pmClark says:
Kim, very interesting idea. Can we also make a law that nobody should suffer any injuries that require surgery, or have any ailments that prevent them from working unless they have pre-existing savings that cover this ailment?
June 29, 2011, 11:06 pmJon Shields says:
An uninsured person always has the risk that they will be not only injured, but actually be sufficiently injured to be unable to tell the hospital “no.” (That’s why my example involved a bus.)
No, it isn’t always accurate. If the medical bills are $1k, many people can pay them. The point is that even if you can pay a certain medical bill on day A, that doesn’t mean you can pay a different medical bill on day B. Anyone who is uninsured runs the risk that they will be confronted with treatment whose cost is far beyond what they could ever afford. It is that risk that is the activity that Congress is regulating here.
June 29, 2011, 11:08 pmyankee says:
How many businesses and taxpayers would Texas lose if people were required to buy $20 worth of broccoli every year? Not many, I’m guessing. $20 is not much money, and the cost of emigrating from Texas is quite high relative to the cost of emigrating from, say, Delaware. But the broccoli industry would stand to benefit to the tune of $500 million in annual revenues.* So why hasn’t Big Broccoli sent in armies of lobbyists to get the legislature to enact the $20/year broccoli purchase mandate?
* Minus revenues from the ten or so people who already buy more than $20 worth of broccoli every year.
June 29, 2011, 11:13 pmKim says:
It’s your health and your body, and you should pay for it!
June 29, 2011, 11:14 pmJon Shields says:
But the Supreme Court already held in Raich that Congress can regulate when the person being regulated is involved in no commerce at all — in fact, the person being regulated in Raich could have been involved in no market at any point during their lives, yet that (according to Raich) would still be constitutional.
If you were trying to make a commerce/non-commerce distinction, and there were no Wickard or Raich, you would have a case. But Wickard and Raich already eviscerated the commerce/non-commerce distinction. If that distinction cannot be used in a case with someone involved in no commerce and no market whatsoever (as Raich held), the distinction is dead (with respect to broad regulatory schemes that also regulate commerce).
Perhaps realizing this, people who are against the mandate changed their distinction to be activity vs. inactivity (rather than commerce vs. non-commerce). But the activity vs. inactivity distinction has absolutely no basis in the Constitution — in the commerce clause or N&P clause. The only basis in the Constitution is the commerce/non-commerce distinction, and that is dead with respect to broad regulatory schemes that also regulate commerce (such as the controlled substance act in Raich, the community-rating/guaranteed-issue provisions in the ACA, or even EMTALA).
June 29, 2011, 11:14 pmc.s.b. says:
Hmm, I suppose you would argue that the constitutional approach would be to leave people to die in the street.
June 29, 2011, 11:15 pmMichael P says:
Food is one example — witness the popular “broccoli mandate” example. It is also practically impossible to not consume vehicular transport — thus the hypothetical “you must buy a Ford” mandate. Furniture, telecommunications services, postal mail, clothing… the list goes on and on. (Precedent going back to Wickard v. Filburn rejects the idea that someone could escape commerce clause regulations by, for example, making their own clothing.)
June 29, 2011, 11:15 pmKim says:
The hospital generally asks the next of kin to okay the procedure if you can’t speak, or so it has been in my experience. They are generally afraid of a lawsuit if something happens and no one okayed it. Believe me, if I found out someone removed my organs or cut me open without my permission or that of my closest relative, that hospital would be mine! They would have to kill me! :)
June 29, 2011, 11:20 pmClark says:
Oh, okay then. How do you intend to make this happen for the unemployed or the old or those who were evil enough to suffer a heart attack while they were doing a minimum wage job as a result of which they had to lie in a hospital bed for 6 months? Make a law banning such illnesses?
June 29, 2011, 11:22 pmrpt says:
And why don’t we abolish consumer bankruptcy while we’re at it? Make them pay every dime, and if they don’t well then there are the work houses. By Dickens, that will teach them.
June 29, 2011, 11:23 pmAnderson says:
Ilya, you can vote with your feet right now and leave the US and its evil mandate. That doesn’t distinguish the states.
June 29, 2011, 11:23 pmMichael P says:
The Constitution is mute on the particular question of emergency medical care — have you not read it?
Since you ask, though, the Constitution does not bar states or the Hippocratic oath from enacting a duty to treat, and it does not bar emergency-care providers from pursuing balances due or charging other customers more to make up for any shortfall in revenues. The General Welfare clause would almost certainly justify a direct subsidy for unreimbursed emergency medical care. However, nothing in the Constitution gives the Federal government additional powers as a result of its policy choices.
In the interest of having a good conversation, please try to limit the inane and/or snide comments to a small fraction of your posting volume.
June 29, 2011, 11:24 pmMichael P says:
Other countries are not obliged to accept immigration. Other states are.
June 29, 2011, 11:27 pmKim says:
Did you read my comment about me paying off my hospital bill which was over $10,000 and all I made was 5,300 a year while paying for college. Life was hard, I had no savings, but I did it. There is no need to “ban illness”.
June 29, 2011, 11:30 pmJust pay for the services rendered to you. Believe it or not, the hospital will work with you.
Jon Shields says:
A direct subsidy wouldn’t work right, because that doesn’t deal with the incentives. That incentivizes people to get medical care they can’t afford, to be paid out of the general treasury (i.e. someone else).
Your argument is basically saying that Congress could either set up rational incentives, OR let uninsured gunshot victims die in the street, but not both. Very strange to see on a libertarian blog.
June 29, 2011, 11:31 pmJon Shields says:
Would you have been able to pay if the bill was $400,000?
That is because fortunately, you have never been in a situation where you are simultaneously unconscious and bleeding to death (leaving no time to call the next of kin or anyone else).
June 29, 2011, 11:33 pmKim says:
No, but that is why I’ve already discussed all of this with my family. Anything that high, I’ve already told them to let me go and tell the hospital of my wishes. But I would as sure as hell try to pay very dime of it if the injury isn’t life-threaten, even if that meant paying for the rest of my life. I got a service and I believe I should pay for it. That’s just me.
June 29, 2011, 11:42 pmpdxnag says:
Maybe the inactivity/activity distinction is not the best one to make.
Someone who self-insures, and covers all their expenses in cash, if any are incurred, can be viewed by Acme (Government Approved) Insurance Co. as a business competitor. The Crony Capitalists need to create a government approved, and artificial, barrier to entry into the insurance market.
A quick search on barrier to entry and anti-trust brought up a Netscape-v-Microsoft opinion (findings of facts) where a private barrier to entry is viewed as a bad thing, not a good thing as with RomneyCare.
I am not willing to concede that either a state government or the federal government can render an individual as functionally incompetent to make a decision to enter into a contract or not by stripping them of free will.
If we were to assume that the inactivity/activity distinction won the day in court then the Crony Capitalists could return to a legislative body and have them declare that it is against the law to pay for medical services in cash unless the payor is on a government approved payor list. This would stymie the self-insured folks, at a point where there was clearly “activity.”
At the outer extreme of absurdity — would it be a crime for me to bring a fresh apple pie to my neighbor, who is a doctor, in exchange for some friendly advice on some ache or pain I was experiencing? This whole episode should be viewed for what is, at face value, Crony Capitalists jumping the shark into full blown totalitarianism — at both the state and federal level. The legal abstractions have become far too remote to make any sense at all, other than as distractions from a clean description of what is really at stake.
The evil here, as recognized by the superior lobbyists in legislative bodies, is competition — and individual liberty. This is just a sad fact.
June 29, 2011, 11:43 pmc.s.b. says:
I can forgo furniture by being homeless. I can forgo transport by living in New York. I can forgo mail by not mailing. I can forgo broccoli, and many do. Actually I can refuse to eat any food whatsoever–some people have a provision to this effect in their living wills.
The only way the slippery slope argument works is by defining categories so broadly that they encompass all human experience. “Virtually everyone in the US wears clothes, so Congress can force everyone to buy overalls.” It doesn’t work for two reasons. First, Congress isn’t forcing you to undergo a specific medical treatment or buy a specific insurance policy, which would be the analogy to forcing consumption of broccoli. Second, you actually do have the choice to give up these goods, although few do. Whereas you don’t really have the choice on medical care; if you are hit by a bus (this thread’s reoccurring example), an ambulance will be called for you whether you want one or not.
Besides, it’s not even really a federalist argument at heart; it’s a liberty interest argument.
June 29, 2011, 11:44 pmKim says:
I woke up in an ambulance, so I was out of it for sometime, and they didn’t run any tests or do anything to me until someone okayed them to run tests on me to see if I had a brain injury. I didn’t even give them a number to call, but somehow my mother was at the hospital when I got there, so I believe either the police or the hospital found her number on me somewhere and called her.
June 29, 2011, 11:50 pmc.s.b. says:
So under the “hit by the bus” scenario, you’re plan is…simply to die? That’s noble, I guess, but not very rational. Anyway, federal law, medical ethics, and basic human decency won’t permit doctors to refuse medical treatment simply because you can’t pay.
June 29, 2011, 11:50 pmTJ says:
Isn’t commerce activity? Does “To regulate” not imply some sort of activity to regulate? Your comments of “whatever that might be” with regards to regulating inactivity actually underscores the problem: the concept of regulating inactivity does not make sense. It is just a ridiculous way to describe a mandate imposed on anyone who is alive. The interstate commerce clause grants to the Congress the power to regulate international and interstate commerce not the power of imposing unconditional mandates on everyone.
Defenders of the mandate can argue that the mandate is not completely unconditional, people must make a certain amount of income before they will be fined for not purchasing health insurance. But this argument only works if everyone’s income falls within the category of interstate commerce. This argument also would make all of their other arguments superfluous, because it would mean that the government has the authority to impose any kind of mandate on anyone who has an income.
I argue that:
Pure insurance probably does not qualify as commerce (although many forms of health insurance are not pure insurance and probably do qualify as commerce).
Most health care is not interstate.
Most health insurance is not interstate.
Not everyone purchases health care services.
Traveling to another state to buy health care services for oneself is not interstate commerce.
Unconditionally mandating that individuals do something (such as purchasing a product) does not constitute regulating.
Regulating something implies an activity to be regulated.
The supreme court ruled that the government can regulate the production of certain goods (regardless of whether or not they are being transported across state line) if it is deemed necessary as part of regulating interstate commerce. I think that the court’s interpretation of the Constitution here is incorrect. However, in these cases, the goods being regulated were ones that were capable of being transported across state lines after being produced. If I have surgery or a medical test at my local hospital, it is not possible for me to take that surgery or test to anther state and sell it. (Medical devices however can be transported across state lines and could be in a similar position to wheat, cannabis, and guns).
June 29, 2011, 11:57 pmKim says:
Please read my first comment that started this whole discussion. If I got hit by a bus, I believe that would require surgery of some sort and I’m against any blood transfusions, transplants or being cut in general. My only choice would be to die, unless my body somehow healed itself, which I doubt it could in anything that severe. I’m okay with it. Who are you to say what is rational or not? This is my life, and I do what I want with it. If I die, that doesn’t hurt you in anyway. I rather save my savings for my family to spend rather than give it to a doctor who may mess up and kill me anyway.
June 29, 2011, 11:58 pmClark says:
I was asking specifically about what would happen if you had a heart attack that cost 6 figures in medical care and made it so you couldn’t work for say, 6 months, or potentially even longer. Should such ailments be declared illegal unless you can show assets beforehand?
June 29, 2011, 11:59 pmMichael P says:
This is so wrong it’s hard to choose where to start.
ACA allows some people to opt out of the insurance mandate. It is a bit harder to do that than to be homeless, though, and neither one is popular.
The country as a whole consists of a lot more than New York City — and even the vast majority of New Yorkers ride the subway, buses, taxis, or similar systems. Again, it is practically impossible to avoid using transport.
How would you manage various tax-related forms without mail? You can shift some of those to telecommunication systems, but I think employers are obligated to send W-2s through postal mail. Again, it is impractically hard to avoid this.
You can avoid broccoli, but not food — your parents (or guardians) fed you before you could make your own choice.
Finally (in that chain), there are religious exemptions in ACA’s insurance mandate, and you can decline medical care. So it is theoretically possible to avoid the mandated insurance, just as it is theoretically possible to avoid most of the examples I gave. It is just impractical for a significant number of people to do that.
ACA does in fact require the purchase of a fairly specific kind of insurance. The coverage requirements in the law are extensive, and the executive branch has further powers to extend what is required. High-deductible plans are not accepted. Self-insurance is not accepted. Whether the regulation is looked at as a regulation of health care consumption or just health insurance, I think it is fair to make the broccoli analogy in the regulation of food consumption.
The fact that there are significant liberty interests is one reason it is a federalist argument.
June 30, 2011, 12:04 amMichael P says:
I think you have hit upon something: If Congress just outlawed heart attacks (after all, they have a substantial aggregate effect on interstate commerce), medical spending in the United States would be greatly reduced. Why hasn’t anyone suggested this approach before? (Or would you care to rescue your post so the question makes sense?)
June 30, 2011, 12:10 amKim says:
I really can’t answer your question because you and I would do two totally different things. I don’t think you can fix a heart attack without surgery, so I am a goner anyway. I accept that. No, I don’t think you should have to show assets beforehand. I didn’t show any. I just paid every bill they sent me without any question. If I owned any assets at the time, I would given it to them. I personally don’t believe in stiffing people, so if my assets had to be taken away, so be it. That’s only fair. I got a service, and I need to make sure everyone who rendered that service gets their fair compensation.
June 30, 2011, 12:15 amdimocracy says:
Any free-rider argument neglects to mention how the fact of mandated insurance would distort the market by encouraging the increase in medical costs (as have Medicare and Medicaid) were it not for the now (funny how this works out) necessary and proper intervention of Federal Gov to try to limit some of these highly probable increases as a result of coercing the public to acquire medical insurance (that is, unless one is a favored crony company or interest group who has been issued a waiver, some other form of bureaucratic favor or eventual legislative relief.)
Obamacare exacerbates the problem of healthcare costs and then supposedly “cures” some of it (yeah, right), similar to what government has done for now out of control college tuition and ruint mortgage lending. Only diff is that, to date, there is no Congressional mandate saying the decision not to go to college or buy a house is (unique) economic activity that is subject to coercive mandates.
June 30, 2011, 12:24 amOhmi says:
Here is shocker: interest groups already do that, every day. And not just to Congress, but they lobby all the agencies that Congress has created to regulate every single aspect/action/inaction of commerce in this nation. The FCC, for example, has a long history of rule-making based on whose company had lobbied them or their overseers in Congress the best; actual benefit to the public does not come into play when choosing the next video format or broadcast standard.
Do Boeing and Lockheed-Martin lobby Congress to pass laws that compel people (the People, in this case) to purchase their products and not their competitor’s? Does Big Sugar lobby Congress to force consumers to purchase their products over those of foreign growers?
Why, yes, they can and do.
Nothing about this decision changes that sorry state of affairs.
June 30, 2011, 12:36 amTJ says:
And you can forgo health care.
It is not a slippery slope argument. No one is arguing that the government is likely to force people to buy broccoli or to eat broccoli (which would be a slippery slope argument) rather they are pointing out how the insurance mandate is being defended with a ridiculously broad “interpretation” of the the interstate commerce clause and necessary and proper clause.
I mean hey, maybe it is great idea to force people to buy broccoli (I actually think it would be a far, far less bad idea than the health insurance mandate). But is a federal broccoli mandate permitted under a reasonable interpretation of the Constitution? I think not.
And Congress would not be forcing you to buy a particular kind of broccoli or tell you what brand you have to buy, or from what store or farmers market you must buy it from. And to buy broccoli you don’t even have to fill out any intrusive forms.
Um, no. The primary issue of contention is the breadth of the interstate commerce clause and the breadth of the necessary and proper clause. You are avoiding this issue by arguing against a strawman.
June 30, 2011, 12:38 ambiff says:
No, he has not offended his conservative friends. He has offended his libertarian friends.
One of the weaknesses of “conservative” jurisprudence is that its practitioners seem to care more about stability/precedent than they care about radical practices, like the exercise of liberty.
The United States was not founded by conservatives, but by revolutionaries.
June 30, 2011, 12:45 amGrover Gardner says:
Kim, you certainly have an interesting take on your own health care. But it doesn’t really apply to the vast majority of people in this country who, if injured or sick, would prefer to live. If yours were a common view, the health insurance industry would be in a bad way.
Clare, how do you think they make up the loss?
You do realize, don’t you Max, that up until about 50 years ago there really wasn’t any medical industry? In fact, there was hardly any medicine at all. About the only effective tools were limited forms of surgery, penicillin, a few vaccines, x-rays, casts, prostheses and aspirin. Cancer? If they couldn’t cut it out you were done. Heart attack? Reduce your activity and pray you don’t have another.
We got by without insurance 200 years ago because there simply weren’t any medical treatments for anything. Period. If you got sick enough you died, and no “doctor” could do a damn thing about it. People’s expectations are little different these days.
June 30, 2011, 12:59 amGrover Gardner says:
Can you explain to me how this is possible?
June 30, 2011, 1:10 amKim says:
When did I say that the majority needed to agree with me? I know I’m in the minority. I love being in the minority. I love being my own person. I don’t need to be in agreement with vast majority to feel important. In fact, I’m tired of being swept into the majority’s thinking with this “everybody’s going to need healthcare”, “$100K heart attacks” and “getting hit by buses” talk. Why can’t I be free to my own person? Why does it matter to you or anyone how I handle my healthcare? I’ve paid for every service I received. I’ve informed my family of my decisions, so there is no question about what to do if something catastrophic happens. What else can I do for you? Even though I currently have health insurance (it’s offered by my employer), I don’t use it. I don’t even know where my card is. I don’t go to the doctor unless it is an emergency such as pneumonia and those visits are typically just $500 plus medicine.
June 30, 2011, 1:40 amHazel Meade says:
It would be perfectly lawful for Congress to simply FUND the unfunded mandate it imposed upon hospitals when it required emergency rooms to treat all comers. Why didn’t they just do that?
June 30, 2011, 1:45 amKim says:
It’s possible. I forgo health care all of the time. Last year, I got pneumonia. I went to the emergency room, was diagnosed, and given antibotics. They told me to come back in a week. I told them “No, I’ll be fine” and I didn’t go back. They couldn’t make me come back or seek additional treatment. I felt that since I was walking around and able to work my body could take care of itself and it did! To be honest, the doctor didn’t really do anything but say “Yeah, you have pneumonia.” I already knew that. You hear the crap in my lungs everytime I inhaled or laid down. To me, it was not worth $540, which the insurance company had to pay, for me to basically diagnose myself and have the doctor just say “You’re right” and take the money and then say “come back in a week” (so he can take another $540 for nothing). No thanks!
June 30, 2011, 2:01 amGrover Gardner says:
This is not what I would call “foregoing health care.” Foregoing health care in this case would have been to seek no treatment or advice whatsoever and either recover from the pneumonia on your own or die from it. You refused any follow-up treatment, but you did not forego health care.
June 30, 2011, 2:24 amBK, MD says:
This is not true. You should read up on the doctrine of implied consent.
As an (true) example, if the paramedics were to bring in someone who is suffering traumatic arrest from a gunshot wound into my ER I do not have to get consent from anyone to perform CPR, place chest tubes, perform a thoracotomy or exploratory laparotomy. I also do not need consent to administer any medications I deem necessary, including blood products. Nor do I need consent to remove or repair organs. This holds true for anyone unable to give consent including minors, the intoxicated or the unconscious.
June 30, 2011, 2:35 amGrover Gardner says:
It doesn’t, up to a point. But if you are hit by a bus, someone is going to pick you up and take you to the hospital, whether you like it or not. You cannot be left in the street. If you can pay for the care, that’s well and good. If not, someone else will have to, in one form or another.
June 30, 2011, 2:35 amGrover Gardner says:
And speaking of driving up health care costs, a clinic could have prescribed antibiotics for a $75 fee. Do you think you’re helping the situation by going to the emergency room for a prescription?
June 30, 2011, 2:43 amBK, MD says:
I realize I made my post after this one, but again, this is not true and you would lose that lawsuit.
I will gave a very common occurance in my hospital. Patient arrives after suffering some sort of truama (GSW, stab, MVC, peds vs. auto, whatever) and is hemodynamically unstable. It doesn’t matter if you are conscious or not because altered mental status renders you unable to consent or refuse treatment. Within minutes we have 2L of fluid and 2 units of blood hanging. Within 10 minutes you would be in the OR. Within 15 minutes of arrival you would have been intubated, anesthetized and 1st incision will have been made. Within an hour 2 segments of small bowel are removed, your spleen is removed and your liver is packed for hemostatis. Even though by national standards this is very fast we still have patients die in the ED bed or during transport to the OR on a weekly basis. We are entirely within our legal rights to not even attempt to find your next of kin given the urgency of the situation.
June 30, 2011, 2:52 amGrover Gardner says:
So, just to recap:
Here’s someone who would prefer to be without any sort of health insurance, who eats up costly emergency room resources for an issue that should be handled by a doctor or clinic, who refuses follow-up treatment for a highly contagious disease, and then claims that he’s not the problem. Do you see anything wrong with this picture?
June 30, 2011, 2:53 amLHB says:
If I’ve learned anything by plowing through these threads regarding the IM, it’s that the War on Drugs -and the political requirement that it be legally justified no matter what the consequences (i.e. Raich) – has done more to undermine the principle of a “Constitution” than all of the “liberal” activists in the universe could have contemplated in their wildest wet dreams, since the beginning of time.
June 30, 2011, 3:51 amSixth Circuit Opinion on Obamacare « The Lure says:
[...] as unworkable the activity/inactivity distinction excerpted here. Paroxysms of libertarian anxiety here. Money quote from the latter: Any failure to purchase a product has some substantial economic [...]
June 30, 2011, 4:04 amMichael P says:
You are presuming an awful lot about the structure of such a subsidy. It seems to me that a workable subsidy would have to require some diligence by the hospital in collecting its bill, and that it would only apply to treatment required by the government under EMTALA.
I also did not say whether a subsidy would be wise, workable or desirable. I only made the claim that the General Welfare authorizes that kind of subsidy. Do you disagree as to the constitutionality?
June 30, 2011, 7:30 amMichael P says:
Yes. You forget that every medical bill this person has incurred has been paid. The objective of the individual mandate is to reach that outcome, so it is clearly not needed here.
I was assured earlier that the real problem was the hordes of people who would rather not have insurance, who get hit by buses, and then cannot afford the treatment that will be given to stabilize their condition (or make them well enough that they can express their rejection of further medical care).
I was also told that basically the only way to be truly free in the United States is to be a jobless, homeless person living in New York City on a hunger strike. Anything else makes you part of interstate commerce in a number of ways, justifying arbitrary regulations by the Federal government. “Me and Bobby McGee” is apparently more right than its authors knew about freedom being just another word for nothing left to lose!
June 30, 2011, 7:47 amleo marvin says:
Because most of us who think being the only wealthy industrialized country not to provide universal health care is nothing to be proud of also believe that merely treating those who show up at the emergency room isn’t the solution.
June 30, 2011, 7:51 amSteven J. Willis says:
Agreed, but this is unfortunate. To win this case, opponents must force the government to defend three attacks:
1. Commerce Clause (so far we’ve only gotten five of eight judges).
2. Taxing Power. While the Mandate may satisfy five judges under CC, not a single one has bothered to address why the Penalty satisfies the Taxing Power. They all assume it is irrelevant. Why? Which enumerated power permits the taking of money from people because they are minding their own business? This issue has nothing to do with lifetime involvement in health care and everything to do with monthly not buying insurance.
3. Due Process. The collection process is draconian. No judge has yet addressed this. The government may assess and collect with no process whatsoever except for a formalistic notice and demand letter. What Judge Sutton said about civil suits is plain wrong.
June 30, 2011, 8:15 amepluribus says:
The complaint to which I referred did not refer in any way to the federalism question. It referred only to the supposed “abuses” the mandate imposes on individuals. Of course, I understand that the federal government’s powers are limited in a way that the state governments’ are not. But that was not the thrust of the post to which I replied. Take the federalism question out of the equation, and it is difficult to answer why it is OK to have a mandate in Massachusetts but not a mandate nationally.
June 30, 2011, 9:49 amHasdrubal says:
All the Keynesians need to check their pants after reading this.
June 30, 2011, 10:17 am“Animal spirits got your AD down? Monetary and fiscal stimulus are so 20th century. We’re an enlightened society, no longer subject to the irrational whims of the masses. For now we can simply legislate demand back to equilibrium! Business cycle? Flattened!”
Nik B. says:
Setting aside the fact that going to the ER for non-emergencies is stupid and almost always not cost-effective, please allow me to point out that you didn’t forgo health care in this case.
Quite the opposite in fact: You availed yourself of it to the extent you felt was necessary.
June 30, 2011, 10:18 amB-Rob says:
Oh, come on! If a student gave an answer like that on an exam, you would fail them. Let’s not be obtuse. Given the state of the law, which has been in place since the early 80s, you ARE, in reality, passing your costs on to everyone else. That is the reality, as Judge Sutton noted, of hundreds of billions of dollars of uncompensated care being passed onto the the hospitals and the insured population by those who are uninsured. Why that “right” to demand health care exists is not the point.
Indeed, if yours is going to be the approach to arguing against the cost-shift-solution “necessary and proper” element of Obamacare, then GOPers should be willing to stand up and argue that the law should be changed, so that hospitals can demand proof of insurance or an ability to pay before treating anyone. So if your kid is in a school bus accident, but does not have an insurance card on him or her . . . well they can sit outside the hospital until someone comes up with enough money to treat them, I guess.
June 30, 2011, 10:23 amB-Rob says:
Uncompensated care stemming from an excellent emergency room and Knife and Gun Club incidents led to the failure of a venerable hospital here. Because you docs will take care of people, the cost be damned, without asking if their insurance covers the treatment. That is a good thing in an industrialized country. Why conservatives then think it is an affront to liberty to require people to have insurance so those costs are not forced on the hospital . . . I am just not getting the argument. But I think I do know where they are coming from now . . .
Ilya, and the others, are really actually hostile to the concept that you docs and your hospitals have to treat all comers. They think that the law “should be” no insurance card, no treatment. That would solve the uncompensated care problem. Unfortunately, a lot more people would die needlessly. But they would die FREE OF THE BURDEN OF OBAMACARE! So there would be some joy in death.
I am trying to envision how this would work for children who are injured while not with their parents. Or for old people who are cognitively impaired and forgot their wallets. Or people who are runners who get hit by cars. Maybe we all would have to carry an insurance care sewed into our underwear or something. Or maybe, a la “Idiocracy”, we can have a little bar code tattooed on our forearm! That way, hospitals will know who is scannable and gets treatment, versus who will not get treatment.
June 30, 2011, 10:36 amAdam says:
Let’s try Prof. Somin’s argument (which Prof. Barnett and other have also made) out in another context:
1. I’m planning to remodel the condo I own.
2. Prof. Somin argues that I do not have the power to do that.
3. After all, if I can remodel my condo, I must have total control over its interior and contents.
4. Total control is is the tyranny of dictators, which is inconsistent with the concept of limited federal government outlined in the Constitution.
5. Because the Constitution doesn’t make me dictator of the world, I can’t possibly have the power to remodel my condo.
Prof. Somin must therefore win, right? Or maybe there are other limitations on my power somewhere he’s ignoring?
June 30, 2011, 11:57 amAdam says:
Or, more likely, they can vote with their votes. Sheesh. Dedication to a concept is great and all, but have you have considered Occam’s Razor?
Which, of course, is why we aren’t going to see tons of mandates from Congress either.
June 30, 2011, 12:01 pmAdam says:
They did, but they also said the distinction is essentially meaningless in this context. Which, of course, it is.
I will be curious to see how the briefing and argument goes at the supreme court, because it seems thus far that there is little effort going into arguing the the substantial effects test is wrong (which, of course, would be fruitless in a lower court) or isn’t met here (which is kind of strange not to argue).
The latter really strikes me as a fundamental flaw. Instead of trying to read a new activity/inactivity distinction into the Constitution, which doesn’t contain those words, I think it would be more effective to argue that there is no substantial effect here and encourage the court to put limits on what has thus far been a shockingly broad doctrine.
This definition of commerce would seem to leave out much of what happens on Wall Street. Surely the creation and sale of derivatives is commerce even though it isn’t the production, consumption or distribution of a commodity, no?
June 30, 2011, 12:12 pmGrover Gardner says:
Yes, he paid his bill (in this case) but he’s part of the problem. People seeking last minute care for relatively minor issues at emergency rooms is part of what’s driving up costs. People foregoing treatment for contagious diseases (or any disease) is part of the problem. The point is, no one has answered my question as to how it is possible to completely opt out of the health care system. There is no way to do that, short of digging a hole in the woods and lying down in it to die. And no one does that. At some point everyone is a participant in the system, whether they like it or not.
June 30, 2011, 12:37 pmKim says:
A couple of points:
First of all, I don’t have a regular doctor, nor will I ever have one. That’s why I went to the emergency room. You know “for emergencies.” Shortness of breath is an emergency. I knew I had pneumonia for about 3 days before I seeked treatment, but Walgreens will not give you a prescription unless you have seen a doctor who has seen and confirmed the illness.
Second of all, I have insurance and the bill was paid. But even if I didn’t have insurance, I would have paid the $540 for the visit out of my own pocket. I had the money. What is the problem?
June 30, 2011, 12:54 pmKim says:
For the record, I’m a she. :)
June 30, 2011, 12:56 pmKim says:
Not being able to breath is not emergency. OK…
June 30, 2011, 12:59 pmAdam says:
Why didn’t you go to a normal doctor during those three days? Doesn’t sound much like an emergency if you had three days to make and have an appointment.
June 30, 2011, 1:05 pmGrover Gardner says:
First, the problem is that you didn’t have an emergency. You knew you were sick for three days, but instead of going to a doctor or clinic you used up precious emergency room resources. You also forced your insurance company to pay much more for your treatment than was necessary. Instead of a $75 clinic fee, they paid $500. How do you think that effects insurance rates for the rest of us?
My company is very clear about this. If we want to continue to have affordable insurance, the first advice they give us is not to go to the emergency room for non-emergencies. Knowing for three days that you have a chest infection is NOT an emergency. Visiting a clinic on the second day would have been the smart and cost-effective thing to do.
And I thought you wouldn’t use insurance even if you had it? Clearly you did, and you contributed to rising costs for all of us by seeking emergency care when you didn’t need to.
Honestly, haven’t you been listening to the debate at all? You (madame!) are exactly the kind of person who is causing a problem. You imagine that you are a free spirit and don’t need insurance or health care, and yet you clearly have done just about everything here that could contribute to the crisis. You delayed care, you slapped the insurance company with unnecessary costs, you abused the emergency room system, and yet you seem to think you are happily flying under the system’s radar. You’re fooling yourself.
June 30, 2011, 1:09 pmKim says:
I’ll give you an example, If I was told right now I have cancer, I would not seek additional treatment. I would pay the doctor for visit and go about my life. If I were to have a heart attack or appendicitis right now, I would let my family know and let the chips fall where they may. I would ask them not to call the hospital.
June 30, 2011, 1:13 pmKim says:
I went to the hospital only because my manager told me to. I was at work and unable to breathe. She told me go to the hospital. Not being able to breathe was affecting my work, so I went. If I were at home (let’s say unemployed, self-employed, or just a housewife) probably wouldn’t have went to see a doctor and just let my body fight on.
June 30, 2011, 1:30 pmGrover Gardner says:
I’m sorry, but this is nonsense, really! First of all, to be diagnosed with cancer is probably a $5000 process just for starters.
But most of all, I don’t believe you. We’ve already been told that you NEVER seek health care, yet you did, in the most costly and inefficient manner. You NEVER use insurance, yet you did, in a way that contributes to rising premiums. You think you can just lie down in a room somewhere and quietly expire, but you can’t, not without incurring inconvenience and costs to the rest of us. You could do this in a hut in Nepal, but you cannot do that in the US, our society just isn’t built that way.
You are a textbook example of why the system is broken and needs to be fixed.
June 30, 2011, 1:33 pmGrover Gardner says:
Kim, can you not see the problem here? By attempting to be the “rogue,” the “independent,” you delayed care, you inconvenienced your fellow workers, you threatened their health by going to work with a contagious disease, you racked up unnecessary costs–it just goes on and on. You say “if I were this” or “if I were that” but you’re not any of those things. You’re someone who thinks that by avoiding health care you’re saving everyone time, money and trouble. Nothing could be further from the truth.
June 30, 2011, 1:39 pmKim says:
My medical expenses last year were $540. I paid the insurance company $1300 last year for coverage. I don’t think they’re crying…
And when did I say, “I have insurance and don’t use it?” If I’m paying over $1300 a year for coverage, I’m using it. My company switched insurance this year and I have no idea where that card is and I’m not worried about it because I don’t go to the doctor or hospital very often enough to care. In my whole enitre life, I’ve been to the doctor about 7 times. I’m 27, yet you say I’m a problem. How so?
June 30, 2011, 1:43 pmHasdrubal says:
Both of which the health insurance mandated in the ACA would cover. I fail to see how forcing a system where the consumer pays zero or a low, fixed marginal cost will reduce overall costs.
There is absolutely ZERO incentive under the ACA to go to a clinic instead of an emergency room. The individual mandate does not resolve this problem, indeed it’s banning of high deductible plans exacerbates it. See the results of the RAND Health Insurance Experiment for the effects of providing free health care on health outcomes. That’s why I am completely unimpressed by it from an economic perspective.
From a legal perspective, from what I understand, Congress is the body who gets to determine what is “necessary and proper” to achieve its goals, even if those methods are actually counterproductive to the stated goals. I can see some reasons for this, but in a case like the ACA, it’s problematic.
Aside from the over consumption issues of providing health care at zero or a fixed marginal cost, the entire individual mandate is premised on the textbook concept that adverse selection causes insurance markets to function best when everyone in the market is forced to be insured. However, this conclusion is premised on the assumptions that everyone in the market is homogenous in risk aversion, heterogeneous (and knows) their expected costs, and there are no profits or overhead in the insurance market. When these assumptions are violated, the efficiency of ensuring everyone in the market becomes much, much more questionable. See Liran Einav and Amy Finkelstein’s paper “Selection in Insurance Markets: Theory and Empirics in Pictures” in the Journal of economic Perspectives, Winter 2011 edition. http://www.aeaweb.org/articles.php?doi=10.1257/jep.25.1.115
I have yet to see an actuarial analysis of whether ensuring the entire US population would raise, lower or not affect health insurance rates.
June 30, 2011, 1:54 pmAdam says:
Why?
So what you said just now was wrong then?
June 30, 2011, 2:08 pmKim says:
You don’t have to believe me because I’m of little importance to you in your daily life. Again, when did I say “I never use insurance” When I was 20, I didn’t have insurance to use. Last year, I got sick, I had insurance and I used it. This year, I’m still paying for coverage, but I haven’t incurred any medical expenses to date. I never said that I don’t seek treatment of any kind. If I broke a bone, I would seek treatment. But for things like heart attacks that involve surgery, I say no thank you. Yes, it is possible in the U.S. to suffer and expire quietly. Just don’t tell anyone you’re sick. People do that all of the time. My aunt did it and she died of lung cancer.
June 30, 2011, 2:09 pmGrover Gardner says:
If you’re reading Kim’s posts, you’ll see the problem. She’s 27 and thinks she’ll never need insurance.
June 30, 2011, 2:12 pmGrover Gardner says:
Because you think you can forgo the system at no cost to anyone else. That may be the case today but it won’t be the case tomorrow or next week or in a few years.
Look, do whatever you want, the rest of us will have to deal. But please don’t pretend that the choices you make have no effect on the rest of us.
June 30, 2011, 2:19 pmKim says:
No, if they would have told me that they wanted to pump my lungs out with a machine. I would have to told them “Hell, no.” “But you’ll die if we don’t” I would have said “Fine” and would have informed my family. As to your first question, Why what?
June 30, 2011, 2:20 pmPublius Daily Digest says:
[...] the rest for an excerpt of the opinion. Ilya Somin has several related posts. In his first, he notes some not-so-great implications of Sutton’s approach: Martin and Sutton’s opinions [...]
June 30, 2011, 2:27 pmGrover Gardner says:
But THIS ISN’T WHAT HAPPENED. What REALLY happened is that you avoided getting timely medical attention, inconvenienced your employer, abused the emergency care system and sloughed it all off on the insurance company. And yet you pretend this isn’t a problem, and assure us that in future you won’t be any trouble at all, you’ll just curl up somewhere and die.
June 30, 2011, 2:29 pmKim says:
I never said that. I just wouldn’t use it the way you would. You keep bringing heart attacks and buses, and I keep telling you for things like that I would not seek treatment (although I do believe if I were hit by a bus, I would be dead instantly on the street.).
June 30, 2011, 2:34 pmAdam says:
You know there are non-surgical treatments for a lot of things, right? And I think especially for a lot of heart attacks.
I’m still not following your motivation. Why do you think you would forgo some medical treatments in the face of grave illness?
You said if you had a major illness you wouldn’t seek treatment. But then you had a major illness and got treatment. You explain this by saying your boss “made you” go to the hospital. Were the handcuff and guns scary when he forcibly dragged you into the emergency room? Or can you see how this is an example of how your current intention not to seek treatment for major illness may not reflect the reality of your future conduct? Someone might “force” you to get treatment, or you might turn out to not be as brave as you think you are right now.
And again, why? You had an easily treatable condition. Why would you accept some treatment and forgo others? Do you think it is virtuous to essentially commit suicide by not accepting readily available medical care?
June 30, 2011, 2:34 pmAdam says:
Ugh. Not everyone hit by a bus dies immediately you know. A friend of mine on the wrong end of a vehicle/pedestrian accident and ended up in a coma for a few months. It was too bad, though, because she couldn’t tell them just to let her die so she ended up in a hospital getting lots of treatment and didn’t get the chance to be noble like you.
June 30, 2011, 2:40 pmKim says:
Because I didn’t think of it as a major illness. I knew pneumonia was basically treated with antibotics, but pharmacies will not give you medicine unless a doctor writes a prescription. I would have loved to skip right over the doctor and go directly to the pharmacy but that’s not how our system works. You’re right, my boss can’t “make” me do anything. It was either “go to the hospital” or “sit down and do your work”. I tried to sit down and do my work and it wasn’t working out. So my only other option was “go to the hospital.”
As to you question of “why accept some treatment and forgo others”, it’s personal. Some things I can tolerate because they involve little risk. But things like cancer and surgery involve extensive care that I don’t want to be a part of. Plus, I don’t like the idea foreign objects in my body (tubing, transplants, transfusion, etc.) So if you think about what else is there for me do but decline since all of those major illnesses may require those things?
June 30, 2011, 3:16 pmKim says:
And what you don’t understand is the insurance company got more than their money’s worth out of me. They paid $540, but I paid $1300 for them to pay $540. That doesn’t seem odd to you?
June 30, 2011, 3:22 pmHazel Meade says:
In a certain sense I feel this is immaterial. First, while you may be in the health CARE market, you aren’t necessarily in the insurance market. There are other ways to handle your halth care costs, and the bill mandates that you not just get a minimum amount of insurance to cover your actuarial risk, it bans risk-based pricing so you’ll be paying much in excess if you lead a low-risk lifestyle.
Secondly, there just seems to be something wrong with applying mandates to positive action as a condition of birth. Nobody asks to be born. Plenty of us have a moral problem with compulsive duties of all kinds – military conscription, national service programs, mandatory morning calisthenics. There is a basic moral intuition at work that people souldn’t be forced to do things, except as punishments for crimes, or because they’ve voluntarily assumed a responsibility.
Even IF we’re all “born into” the health care market, making being alive an “activity” that is subject to regulation and all sort of compulsive obligations just doesn’t strike people as moral or just.
June 30, 2011, 3:31 pmKim says:
Did her family protest when they saw her? I’ve instructed my family to do exactly that. So if I did survive getting hit by a bus only to put in a coma, I expect my family to tell the hospital to stop, send me home, and let nature run its course and pay the hospital (out of my accounts, of course, if I had no insurance) for any services they did provide for me before they knew of my wishes. If I woke up and found out they didn’t do that, I would probably never speak to my family again.
June 30, 2011, 3:34 pmAdam says:
Can you see why some of us are not confident that this personal preference will win out in the face of the need for more significant treatment in the future? That actually faced with the option of surgery to remove, for example, a melanoma, which could be relatively minor and life saving, you might choose life? Or that your attitude might (I’d actually say will) change over time?
Not to my knowledge, but I don’t think she share this particular form of insanity. It wouldn’t have matter much for this discussion, though, as her family lived half way across the country and significant expense would have already been incurred in the ambulance an ER. Which, you should know, if what would happen to you as well.
I don’t believe you.
June 30, 2011, 3:44 pmKim says:
I have been faced with the option of minor surgery, and I’ve turned it down. In my senior year of college, I went to the hospital because my menstrual cycle would not stop (I had been bleeding nonstop for 45 days) and they wanted to go in and scrape my uterus. I told them, “No.” They told me I’ll be weak if I didn’t let them do it. I didn’t care and I paid them for them checking me and I left. It stopped on its own within a week. So, yes, I can withstand surgery when it is offered as a option.
June 30, 2011, 4:10 pmKim says:
Well, believe it. It would be hard for me to even look at them, let alone speak to them. To me, for them to even disregard my wishes is beyond disrespectful.
June 30, 2011, 4:18 pmAdam says:
You are one of three things, (1) insanely ideological, (2) trolling, or (3) a very naive young person. My guess is (2), but (3) possible, and I suppose a dash of (1) could be tossed in with it too.
Regardless, if you are able to keep to your principles over your life, which I do not believe, you will be a very special unicorn indeed. Sufficiently special as to be, in my opinion, irrelevant to the public policy discussion. Very nearly no one would/will make the choices you claim you will make.
Btw, unlike your bleeding, you melanoma isn’t going to go away on its own.
God forbid you be disrespected and alive instead of honored and dead.
June 30, 2011, 4:29 pmGrover Gardner says:
No it isn’t odd. I guarantee they shelled out a lot more than that for someone else in your office during the course of the year. This is what insurance pools are about: spreading risk. You may pay more than you use one year, but the next year you might need a lot more covered than what you paid in.
If you had incurred $4000 worth of costs for your illness but the insurance company said, “Sorry you only paid $1300 so that’s all you’ll get,” they wouldn’t be an insurance company, they’d be a layaway plan.
June 30, 2011, 4:30 pmGrover Gardner says:
It’s this little “other ways to handle your health care costs” thing that doesn’t seem to be working.
June 30, 2011, 4:42 pmKim says:
1. Just because you don’t agree with me doesn’t make me a troll, immature or a unicorn (whatever the hell that means). I haven’t once called you or anyone a name just because think differently than me.
2. I came on here to say that not everyone deals with major (or minor) illnesses that same way based on personal beliefs that aren’t necessary religious (which is one of the main reasons I’m against the mandate).
3. I didn’t think the bleeding would stop and was prepared with the possibility of bleeding for the rest of my life when I left the hospital. So, again, why do you think that suddenly I will change my mind just because a doctor thinks it may save my life?
June 30, 2011, 5:06 pmKim says:
I know insurance is about spreading risk, but you made it seem like I’m so evil just because I “dared” to make them pay $540 after I just shelled out $1300 for coverage that year.
June 30, 2011, 5:14 pmAdam says:
Of course not.
No, I noticed and appreciate it. But for the record, “unicorn” isn’t an insult, it’s just a way of saying you are unique.
I guess “troll” is technically an insult, but it just means I’m skeptical that you really hold the views you claim to hold.
And I didn’t call you immature, although, frankly, I don’t think it would have been unfair to have done so. You certainly sound like a young person who has not yet fully grasped her mortality.
Right, and accepting your sincerity, I think you are sufficiently unique that your particular way of dealing with illness shouldn’t be the basis of our public policy on health care. That is, I’d wager there are very, very, few people who, like you, would chose not to get readily available effective treatment for major illnesses that would save and prolong their life. That you might be the only one in this country who would, for example, forgo an angioplasty during a heart attack, or relatively routine surgery to remove a tumor or an inflamed appendix. That nearly everyone else values their life enough that they would have these major but routine procedures if they have any way at all of paying for them. That you might be the only one who would learn that they had a life threatening but treatable illness and choose to die rather than get treated for non-religious reasons.
I note that you didn’t say that you thought you would die when you left the hospital. That’s why.
And I’m sorry, but the more you write, the more you sound like a troll. I really have a hard time believing that anyone sincerely holds the beliefs you claim to hold.
June 30, 2011, 5:23 pmAdam says:
Btw, I also note that you didn’t list among your options, or chose, to just go home and ignore the instruction to go to the hospital.
Again, this story suggests that it doesn’t take much to get you to abandon the principles that you claim.
June 30, 2011, 5:33 pmKim says:
I don’t know how to make you believe me. I know it’s hard concept to follow that some people just will not fight major illnesses. It took me years to convince my mother to accept my decision. But she did, on the condition that I wrote it down ahead of time. I did it. Two of my aunts didn’t fight when faced with cancer and they accepted the outcome and they died without seeking treatment. I accepted the outcome of me possibly bleeding non-stop for rest of my life. If the doctor would have said you will die if you don’t get this fixed, my answer wouldn’t have changed because I’m adament against surgery. In the doctor’s mind, surgery was the answer. I didn’t like that option, so I left. The threat of death wouldn’t have changed my mind.
June 30, 2011, 5:59 pmKim says:
Because I don’t have that option at my job. You can’t just leave because you don’t want to be there, especially since I had just started working there when my situation happened. They are very strict when it comes to PTO. It has to be approved by the manager and if she told me to go to hospital or sit down, I guess I would have to go to the hospital if sitting down wasn’t working.
June 30, 2011, 6:08 pmleo marvin says:
Not evil. Inefficient and wasteful. You seem to think that so long as the insurance company is in the black on your account, you did nothing “wrong.” (Again, by “wrong” I mean wasteful. I’ll put aside questions about the morality of wastefulness.) I assure you the insurance company wouldn’t see it that way. As between someone who innocently gets hit by a bus that puts them in a coma on their first day of coverage, immediately costing the company more than they’ll ever receive from that person, and someone like you whose willful self-negligence consumes some but not all of the insurer’s profits on your account, the company would be more critical of you.
June 30, 2011, 6:08 pmKim says:
I read you comment again, and if you meant I should have lied to my manager and told her I was going to the hospital, but went home instead, that is a non-starter for me because lying is wrong and lying to an employer is definitely wrong and stupid. What if she found out I didn’t go? Is that worth my job and reputation?
June 30, 2011, 6:21 pmAdam says:
For non-religious reasons, yes, very hard. It’s one thing if you believe that all will be taken care of in the afterlife, it’s easier to understand how you are okay with dying unnecessarily.
I’m not sure exactly what you mean, and I can see situations where I might make that choice. But those situations are exactly why the conversation has been about heart attacks, appendicitis and melanoma. These are things with fairly routine and effective treatment. Many types of cancer only have painful and/or grueling and marginally effective treatments. I can totally get deciding that the treatment is not sufficiently effective to be worth it. But it’s hard to think, for example, of someone choosing to risk death from an infected ingrown toenail rather than minor surgery.
Of course you do. You could have quit your job. But you chose keeping your job over your principle of not getting medical treatment. That is why some of us question whether you will make similar choices in the future.
June 30, 2011, 6:27 pmJohn L. says:
I also find Kim’s argument flimsy in a lot of ways, but mostly I don’t think it matters very much. I’m willing to assume that everything she says is completely true in the facts and in her assessment of the implications.
That makes one person I have ever heard of who, in the face of a serious but treatable condition, would refuse all life-saving care on non-religious grounds. I’m sure she’s not the only one in the country; there are probably hundreds like her.
And if those few hundred people are treated unfairly under the law, I’m sorry about that. It’s not a very strong legal argument, though.
June 30, 2011, 7:05 pmGrover Gardner says:
My father chose not to fight his second bout of cancer at age 83. That doesn’t mean it didn’t cost anything. There was equipment and sedatives and hospice visits to be paid for. I suppose he could have died completely alone, in agony, lying in his own waste. That might have saved someone some money.
My point is that even DYING in America involves expenses and creates an interface with the health care system, any way you cut it.
June 30, 2011, 7:14 pmKim says:
Lose my job over some antibotics??? Not all pneumonia cases are not fatal and the fact that was walking around proved that. I stated that I knew before I went the to the hospital that the doctor was going to prescribe me antibotics as the remedy. I knew the outcome before I went to the hospital because I looked it up. If he would have look at me and said this is much more serious than that and tried to make me stay, I would have told him “No, thank you.” and went home. Turns out the doctor and I were both wrong and the antibotics did nothing to treat it. I didn’t go back to the hospital because knew that the next step of treatment was probably for them to pump my lungs. I didn’t want to go that route, so I stayed away and let my body get rid of it on its own.
But I thought about something while I was at dentist, and you are right, they can’t make public policy around people like me because we are few and far between. But why can’t there be an opt-out of the individual mandate? Make me sign something, make me wear a bracelet saying “Don’t treat” Something. I would sign it.
June 30, 2011, 8:25 pmKim says:
Neither one of them chose to fight a first bout. They didn’t fight at all. In fact they didn’t even tell us that they were sick until a couple of months before they died.
June 30, 2011, 8:31 pmNik B. says:
It is. But in your case, it was a self-inflicted one. By your own admission, you waited three days to go to the ER despite knowing you had pneumonia.
But wait… you said:
You can’t have your cake and eat it too. Either it’s an emergency and you go to the ER because of that, or it’s not an emergency and, per your “code”, you sit at home and do nothing.
So, was it an emergency where you couldn’t breathe, or were you simply forced to go to the hospital by your boss?
If this was an emergency, again, it was of your own making. If it wasn’t, then you went to the ER for a non-emergency for which a simple doctor visit would have been appropriate.
Either case, your idealism is painting you in a very bad light.
When you had a bout of menorrhagia, you didn’t sit at home. Presumably you weren’t ordered by your boss to go to the ER then. But if you didn’t think it was an emergency, why go to the ER instead of sitting at home and letting your body heal?
Besides, by your own admission, you’d have refused treatment. So you went in for what exactly?
June 30, 2011, 8:57 pmKim says:
I would love skip over all doctors and hospitals and go straight to a pharmacy in order to get prescriptions, especially if you already know what is wrong like I did. But they insist you see a doctor first. I can’t help that.
Again, you make it sound like I’ve cheated someone out of something. I’ve had and paid for insurance since 2006. I’ve used it twice. Again, I say, I don’t think insurance companies are somewhere crying over people like me. In fact, there are probably down right giddy…
June 30, 2011, 9:03 pmNik B. says:
Wait a second. I thought you said that both the doctor and you were wrong. So you didn’t really know what what was wrong, and thus what kind of prescriptions you needed.
I am, however, with you on the silliness of requiring a prescription for pretty much everything. I know I wouldn’t make every medication OTC, but beyond that I’m not sure how I would improve this situation. Perhaps allow pharmacists to authorize certain kinds of commom medications (e.g. a seven day course of azithromycin).
June 30, 2011, 9:12 pmKim says:
I personally wanted to why I was bleeding. The doctor couldn’t figure it out and didn’t know why, but wanted to go in and scrape it all out so it would just stop. Something about losing iron and weakness. I didn’t go for treatment. I went for an answer. I didn’t like her option, so I left and let my body heal on its own. It still happens on occasion, but now I know not to worry about it, it will stop on its own.
June 30, 2011, 9:21 pmKim says:
We were wrong about antibotics getting rid of pneumonia. It didn’t cure the pneumonia and continued to have it for at least a month. It took me at least three months to fully get my lung capacity back to where I could walk and talk without getting winded.
June 30, 2011, 9:27 pmAdam says:
Yes, you said it was the deep conviction not to get treatment. It seems that conviction isn’t so deep.
The thing is, the rest of us aren’t going to let that happen. We think you should be kept alive if we know how and you consent. It’s not hard to anticipate that most people who signed a pledge like you might reconsider their decision when deathly ill, even if you wouldn’t.
So, yeah, if I was comfortable with letting you die, I’d say fine, I’m okay with your carve out. But I don’t think I can just let you go.
The reason you have to see a doctor is that you might well be wrong about what’s wrong with you. And specifically to antibiotics, boy would be be screwed if people could get them just by asking. You think drug resistant bacteria are an issue now?
I’m sympathetic to the general notion, but extra antibiotics, absolutely not.
June 30, 2011, 9:30 pmHazel Meade says:
See, actually, the cost shifting due to uncompensated care is actually NOT that big a problem in the health cae markets, and it is NOT the primary motivation behind the bill.
The primary motive for the bill was “universal coverage”. It was not avoiding uncompensated care costs, it was getting health care to sick people who don’t have insurance. Or rather, getting people health care without askin them to pay for it.
If the purpose of the bill was MERELY to regulate uncompensated care, then there would be no reason to ban risk-based pricing or exclusions of pre-existing conditions. Indeed, those regulations are, by the governments own arguemtns, the REAL REASONS the mandate is “necessary”.
The whole issue of uncompensated care in emergency rooms is just semantics. It has nothin to do with the motivation behind the bill or the actual reasons for the mandate.
June 30, 2011, 9:41 pmHazel Meade says:
See, actually, the cost shifting due to uncompensated care is actually NOT that big a problem in the health cae markets, and it is NOT the primary motivation behind the bill.
The primary motive for the bill was “universal coverage”. It was not avoiding uncompensated care costs, it was getting health care to sick people who don’t have insurance. Or rather, getting people health care without asking them to pay for it.
If the purpose of the bill was MERELY to regulate uncompensated care, then there would be no reason to ban risk-based pricing or exclusions of pre-existing conditions. Indeed, those regulations are, by the governments own arguements, the REAL REASONS the mandate is “necessary”.
The whole issue of uncompensated care in emergency rooms is just semantics. It has nothing to do with the motivation behind the bill or the actual reasons for the mandate.
June 30, 2011, 9:42 pmNik B. says:
I don’t disagree — especially with the overuse (and misuse) of antibiotics we have now. However, there are situations where such an ability would make sense.
June 30, 2011, 9:46 pmleo marvin says:
I don’t know anyone who disputes that getting more people covered was at least as driving a motive as containing costs. Ironically, the bill’s opponents managed to undermine cost controls more than coverage.
June 30, 2011, 10:23 pmFederal Appeals Court Upholds Obamacare’s Individual Mandate at Patriots for Freedom says:
[...] an analysis by Ilya Somin, also [...]
June 30, 2011, 10:39 pmKim says:
When I was told to go to the hospital or sit down. I chose to sit down first. I wasn’t getting any work done. My chest was heavy and it felt like the right side of chest was caved in, and I coughed violently after every three words or if I so much as moved my legs to turn around in my chair. I looked online to see how pneumonia is treated and saw that antibiotics is first treatment that doctors try. If that doesn’t work, they may pump your lungs out with a machine. Since antibiotics was the first treatment, I was okay with that, so I went to the hospital. Turns out it didn’t work and I still had pneumonia. I knew the next step was probably a lung pump, so I decided not to tell anyone and suffered alone. Did I scare people with that decision? Yes. My mother begged me to go back to hospital. I told her “No.” My co-worker actually got scared when she heard me coughing, I told her I was all right, and when I felt another violent cough coming on, I went to the bathroom so no one could see or hear me.
As to my suggestion, I don’t understand. If someone decides that they want to go, why do you have a problem with letting them go?
June 30, 2011, 10:39 pmGrover Gardner says:
Hazel, I wasn’t referring to uncompensated care. I was referring to the average person being able to afford health care at all.
June 30, 2011, 11:01 pmjukeboxgrad says:
kim:
You’re ostensibly willing to give up your life to be consistent with the principles you’ve expressed, but you’re not willing to give up your job. Got it.
Maybe you should think this through a little more? After all, if you show up dead they might fire you.
July 1, 2011, 1:05 amAdam says:
Because they might make that decision when they are young and overconfident only to regret it later in life. Among other things.
July 1, 2011, 11:23 amKim says:
Very funny. You do understand that all cases of pneumonia are not deadly? The fact that I was walking and talking (although it was very uncomfortable to do so) showed that it was not life-threating and antibiotics is typically the first treatment for “walking pneumonia” as they call it. I’m okay with taking some medicine. I’m not okay with procedures and hospital stays. Does that help you understand my position?
July 1, 2011, 3:11 pmClark says:
Be that as it may, is that your solution for the healthcare problem? Deny people procedures and hospital stays if they can’t put up collateral?
July 1, 2011, 4:24 pmKim says:
What are you talking about??? How did “other people” get into my own personal healthcare decisions? How is what I said a solution for dealing with anything? It’s my own personal belief. This is how I deal with MY healthcare. Other people can do whatever they want. I just want to be left alone. Like I said before, I would be happy with an opt-out in return for being left alone.
July 1, 2011, 6:45 pmKim says:
Makes sense, but just because a person is young doesn’t automatically mean they don’t know what they are doing.
July 1, 2011, 6:52 pmjukeboxgrad says:
kim:
You have missed the point. I don’t need help understanding your position. I already understand your position. The problem is not that I don’t understand your position. The problem is that your position lacks credibility. Various people have pointed this out. And that’s what I was pointing out when I said what I said about showing up at work dead.
Yes, it doesn’t automatically mean that. It just seems to mean that in your case.
July 1, 2011, 10:30 pmKim says:
Fine we’ll agree to disagree. For someone who already has their burial plans and living will set, yeah, I’m totally “unserious”…
July 1, 2011, 10:42 pm