Category: Medicine

No Mandate, Only a Tax

Chief Justice John Roberts’ surprising decision to uphold the Affordable Care Act [PDF] is a refreshing reminder that court decisions are usually about the law, not political ideology. Journalists and the general public, lacking legal expertise, tend to interpret decisions in terms of politically favored outcomes, and impute similar motives to judges. In reality, judges tend to split along ideological lines not because they make politically informed decisions, but rather political ideology tends to align with jurisprudential approach. Still, most decisions are sincere interpretations of law according to coherent principles. Roberts’ decision is an exceptionally incisive treatment of the issues at hand.

Most strikingly, Roberts upheld the constitutionality of the Act while rejecting the application of the Commerce Clause to the so-called “individual mandate.” He plainly affirms: “The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command.” The “mandate,” then, cannot be interpreted as a mandate. It is not illegal to refuse to buy health insurance, as there are no legal penalties save the requirement to pay slightly higher taxes. By rejecting a Commerce Clause argument, Roberts cuts off the possibility of future mischief by Congress attempting to regulate all activity and inactivity. Justice Scalia, in his dissent, gives a biting criticism of the opinion of Ginsburg et al., which would effectively abolish all limits on the scope of federal power. He pointedly notes the central fallacy of her instrumentalist philosophy, supposing that the Constitution enumerates problems to be solved, rather than powers of government.

Yet Roberts separates himself from the Court’s “conservative” wing – which in this instance includes the “moderate” Justice Kennedy – by allowing that the penalty imposed on the uninsured is effectively a tax, even though the law itself calls it a “penalty.” In Section III-B of his opinion, he cites precedent showing that the label applied to a fee or penalty does not control its constitutional status as a tax (though it does control the applicability of the Anti-Injunction Act, here ruled inapplicable). Further, he upholds the principle of judicial restraint by insisting that a law should not be overturned if there can be found a reasonable construction whereby it is constitutional. The construction that the mandate is a tax, though unintended by the legislature, is reasonable, and therefore the law may be upheld. This heuristic favors the functional effect of the law, rather than legislative intent or wording. Yet this interpretation does not oppose the intent of legislators, who would surely prefer that their law be held constitutional even if not on the same grounds. Roberts cites precedent showing that it is not necessary for Congress to specify the correct power it is using, as long as it is in fact using a constitutional power.

The interpretation that the “penalty” is a tax is reasonable, according to Roberts, for several reasons. There is no indication that a person may be prosecuted for failing to purchase insurance, so such omission is not a crime, in which case the additional tax is not a fine. The “penalty” is collected through ordinary income tax filing, and those who do not have to file do not pay anything. The penalty is small (only 2.5% of adjusted taxable income), in most cases much less than the cost of buying insurance, and can never exceed the cost of insurance. In fact, it is projected that 4 million will elect to pay this penalty rather than purchase insurance. Roberts also suggests that the absence of a scienter requirement proves that this is not a penalty for unlawful behavior, but Scalia rightfully skewers this notion. Nonetheless, the rest of the Chief Justice’s arguments hold.

Once it is admitted that the mandate is a tax, one need only show that it is a constitutionally allowable tax, and Chief Justice Roberts makes relatively easy work of this task. He cites numerous precedents of taxes designed to incentivize behavior, and notes that the specification of a determinate circumstance (having taxable income, yet lacking insurance) exempts this from being a capitation tax or “direct tax” in the sense of Article 1, Sec. 2. He further observes that omitting to do something does not exempt us from taxation. The proposed tax is not so high as to become unconstitutionally punitive.

The treatment of the “mandate” as a tax is by no means academic. As the Chief Justice notes:

Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions.

With a tax, by contrast, the government has no coercive authority beyond “requiring an individual to pay money into the Federal Treasury.” There is no further penalty, and the government cannot coerce anyone to buy health insurance, any more than they can force smokers to quit.

The ruling in National Federation of Independent Business v. Sebelius places important limits on future attempts at government mandates, not only because the government is denied broad coercive power over private action or inaction, but also because any future “mandate” will be clearly perceived as a tax, and thus difficult to pass. The so-called “mandate” amounts to a regressive tax, being a flat 2.5% rate, with mandatory minimums, on taxable income. This tax will disproportionately impact the young and the middle class.

Ironically, the “individual mandate” was ruled constitutional in part because it is so weak. The cost is so low, and easily avoided, that there is reason to doubt the basic premise of Obamacare, namely that a shifting of the cost burden to the young and uninsured will make health care more affordable in general. If increased mandatory coverage is not matched by sufficient increases in enrollment, premiums will only go up, discouraging even more people from enrolling, and creating a vicious spiral. Already, in the early phases, premiums have risen more rapidly than previously, with larger co-payments. This is because shifting costs through health insurance reform does little to address the fundamental cost structure problems at the provider level. Hospitals, doctors, and pharmaceutical companies strongly support Obamacare for good reason, and it is not because they expect their revenue to decrease.

Benevolent Statism vs. Religious Freedom

Those who are generally unsympathetic toward organized religion may be tempted to dismiss or belittle the recent furor over the Obama administration’s mandate that all employers, including religiously-affiliated institutions, must provide coverage for sterilization, contraception and abortifacients. From a hostile secular liberal perspective, any opposition to this measure must be grounded in an irrational desire for public recognition of a religious belief. Adherence to this measure, by contrast, is simply rational compliance with a public health initiative. Such breezy analysis ignores the fact that the proposed mandate is a significant departure from established law regarding freedom of religious conscience, and it exhibits an intellectual confusion of liberal ethical norms with objective scientific reality. That is to say, the notion that contraception is necessary to health requires an expansion of the notion of “health” to include normative social judgments, rather than pure physiological examination.

The legal or constitutional issues are profound, and based on past case law and the current composition of the Supreme Court, it would be extremely surprising if the Obama Administration’s proposed measure will withstand litigation. The movement so strikes at the heart of freedom of conscience that several bishops are openly calling for refusal to comply with this unjust law. To appreciate the significance of this fact, consider that the bishops do not call for civil disobedience regarding existing law allowing divorce, abortion and contraception, or indeed for any other matter, though there are plenty of laws that express ideas hostile or contrary to Catholic teaching. However, none of these laws compel a conscientious Catholic to participate in a gravely immoral act. Further, the opposition is not limited to “conservative” bishops, but extends even to liberal-leaning Catholic figures such as Roger Cardinal Mahony and John Allen of the National Catholic Reporter.

Now, many liberals will dismiss this by saying that the Catholic Church is “wrong” or “backwards” for regarding contraception, abortion and sterilization as gravely immoral, and cite statistics showing most lay Catholics disagree with official Church teaching on contraception in particular. These criticisms show that certain liberals have no understanding of the principles of liberalism. There is no virtue in tolerating only those beliefs you find rational and agreeable. Even fascists tolerate other fascists, and communists tolerate other communists. If liberals only tolerate other liberals to have a voice in the public sphere, they are no more tolerant than anyone else. To adopt the “free exercise of religion” and freedom of religious conscience as a matter of principle means that we respect such freedom regardless of the content of a certain religion. Too often, secular liberals seem to regard religious freedom as something they grant only begrudgingly to keep the peace, not something they truly respect and honor. How could they respect and honor such a freedom, if they think all religion is a stupidity at best, or an oppressive evil at worst?

To make an analogy, one need not agree with the Amish that Christian modesty and simplicity requires refraining from using electricity. One could further point out that most Anabaptists (i.e., Mennonites) have no objection to using electricity and other modern conveniences. This does not abolish the right of the Amish to follow their religious conscience, and no one would think of compelling them to use electricity.

Many liberals tend to mistake their ethical judgments (homosexuality is essentially no different than marriage; contraception is “reproductive health”) for scientific facts. They are forced into such intellectual contortions because they are nominally unwilling to accept the legitimacy of imposing objective moral norms on the public (“you can’t legislate morality”). Thus the liberal, to be consistent, must pretend his ethical judgments are scientific facts. This can only be accomplished by the illogical process of inferring normative judgments from declarative statements.

This move by the Obama administration is based on the assumption that an ideological creed – “contraception is necessary to ‘reproductive health'” – is to be treated as an objective, universally accepted fact. It refuses to recognize the equal validity of alternate constructions, e.g., “contraception is an elective convenience for reasons of avoiding the economic and social consequences of pregnancy”. The notion of “reproductive health” is hardly coherent; if anything, pregnancy, not its prevention, is a sign of reproductive health. Even the manufacturers of contraceptives do not really believe that pregnancy prevention is a question of physical health. When Pfizer issued its recent recall of a non-functioning contraceptive, it explicitly assured customers that there was “no health risk”! Perhaps the women with unwanted pregnancies would have disagreed, but they are entitled to no compensation. If pregnancy were a health affliction, Pfizer would be facing tremendous liability right now.

At any rate, the Obama administration’s rule fails the “compelling state interest” standard for intervention in religious affairs, which previous cases and acts of Congress have established as applying to religiously affiliated institutions and persons, not just houses of worship. Given the widespread availability and inexpensiveness of contraceptives, there are plenty of alternative means of guaranteeing contraceptive access without requiring religious employers to pay for them, making this an especially gratuitous intrusion into the exercise of religious conscience.

As an added note, the mandatory imposition of insurance coverage without any copay is economically unsound, as proven by the past experience of military prescription drug coverage, which until recently had zero copay, resulting in exorbitant waste. The economic irrationality of this rule is only consistent with its ideological origin, which confuses convenience with entitlement. This 1970s-style statist liberalism is already imploding in Europe; it is ironic that our “progressive” president is trying to introduce this system as if it were something novel.

Cancer: A Disease of Civilization

The only thing surprising about the Villanova study indicating that “cancer-causing factors are limited to societies affected by modern industrialization” is that this is actually considered news. It has long been known that the incidence of cancer is extremely small in pre-industrial societies, nearly non-existent. In order to defend the current culture of emphasizing intervention over prevention, oncologists and others have argued that this is only an artifact of people living longer. The oft-repeated excuse that ancient people rarely lived to be more than 30 is profoundly ignorant and misleading.

When we say that ancient societies had life expectancies of 30 or so, this does not mean that people typically died around age 30. This is an average life expectancy at birth, a figure that is heavily skewed downward by a high infant mortality rate. Those who reached adulthood could reasonably expect to live into their 40s or 50s, and many lived to be over 70. This is why, when you read ancient Greek and Roman texts, such as the lives of the philosophers, there is nothing considered remarkable about living to eighty years old, and it is considered tragic if someone dies in their thirties. The “life expectancy” was much shorter, but the lifespan of man was just as long. People didn’t start having their bodies break down at age 45 just because the average life expectancy was shorter.

The same is true among Native Americans, for which we have a better record, since they lived in technologically primitive conditions until relatively recently. Nonetheless, they were noted for their health and longevity. Plenty of seventeenth century documents attest to the long lives of the Indians in Mexico, for example, where there were many who lived to well over eighty, including some reputed centenarians. The Inuit had no incidence of cancer whatsoever, despite living long enough to develop it (after all, we start screening for cancer at age 40, or 50 at the latest). It was only in the twentieth century that cancer became prevalent among the Inuit, when they adopted modern diet and a sedentary lifestyle.

In the mid-twentieth century, it used to be thought that men having heart attacks at 50 was just something that happens as part of the aging process, but now we know that early heart disease is fully preventable, being a consequence of behavior: diet and lack of exercise. Drug companies and doctors who advocate aggressive interventions downplay prevention, since selling you the cure is much more lucrative. To this day, there is little emphasis on nutrition in medical school, and little serious research into the toxicity of processed food except in simplistic dose-response studies. Our bodies are complex organisms, and there are likely many interaction factors among substances that, by themselves, may appear harmless.

The Villanova researchers do not do themselves any favors when they make the excessive claim that “There is nothing in the natural environment that can cause cancer.” Still, the natural incidence of cancer among animals is astonishingly low, especially for a disease that is supposedly just a natural consequence of living long. Animals kept in captivity, protected from predation, can live their full natural lifespan, so we should certainly expect to see a significant incidence of cancer among them, but we do not. Up until the eighteenth century, cancer was comparably rare among humans. Indeed, when you read older documents mentioning a “cancer,” they are often referring to gangrene or some other degenerative growth. Cancer as we know it was extremely rare, though there were plenty of people who lived to old age.

The real turning point appears to have been in the last few centuries. The hallmarks of societies that have what we now consider “normal” cancer rates are consumption of refined sugars and carbohydrates (following the discovery of the Americas), tobacco use, giving first childbirth later in life, and universal use of toxic pesticides and other pollutants. The sheer abundance of toxins in our food makes it practically impossible to single out a cause in a simple dose-response relationship, which is why countless harmful things, each of which is minimally harmful, are allowed to remain on the market.

The embarrassing fact that many of the technological niceties that are forced upon us ostensibly to improve our lives (but in fact to reduce the cost of production and increase profit) are actually killing us makes a mockery of the notion of science and technology as a sort of earthly salvation. The technocratic establishment expects to be praised for saving us from diseases created through their own uncritical hubris (“Don’t be silly, this won’t hurt you, you Luddite”). For those who are hoping for salvation through medical science, I should remind you that researchers are just flesh-and-blood human beings, many of whom are susceptible to vanity and self-aggrandizement. These sort understand perfectly well that an ounce of prevention is worth a pound of cure, or ten pounds of “treatment”. The medical establishment has judged it is much more profitable to sell you the ten pounds, and it’s hard to argue with their math, as the cancer treatment industry is currently worth over $200 billion.

N.B. Nonetheless, there is some good research that addresses the root causes of cancer and how to prevent it. One especially worthy institution in this regard is the American Institute for Cancer Research.