Solicitor General Donald Verrilli, Jr. said at the conclusion of his oral argument on the Affordable Care Act:
There is an important connection, a profound connection, between that problem [that people don’t have health care because they don’t have insurance] and liberty. And I do think it’s important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.
Transcript, p. 79-80. It sticks out in an otherwise dry, technical, and occasionally clumsy presentation as an eloquent way to explain the problem Democratic politicians were trying to solve with the ACA. It turns the discussion away from the language of the ACA to the real lives of human beings. Adam Liptak, reporting in The New York Times, says it was a way of addressing central concern of Justice Anthony Kennedy, whose jurisprudence turns on his concept of liberty.
Paul Clement for the anti-ACA plaintiffs argues about liberty also: “I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” P. 85. Equally eloquent, but it doesn’t ring as true as Verrilli’s; after all, lots of states have motorcycle helmet laws, to the dismay of many riders. And we do have Medicare, which seems a lot like an insurance policy.
That clip from The Daily Show with Jon Stewart points out the contrasting positions: on one side, let’s help everyone get insurance; on the other: “Honestly, I will not comply with the law because I believe in freedom”. Freedom from buying health care insurance versus freedom from debilitating medical conditions. As Stewart puts it: “Tastes Great! Less Holocaust!”.
As we learned in a recent Book Salon on a book by Nicholas Wapshot, the big contest in economics is between John Maynard Keynes and Friedrich von Hayek. In The Road to Serfdom, Hayek lays out his main thesis: that economic freedom is the real freedom. Our financial resources determine the scope of the things we can do and have, and within their constraints, we have to figure out how best to satisfy our needs. We choose those things we want to have or to do, and forgo those for which we do not have the money.
It is this act of choosing the ends which are important to us that constitutes our exercise of our freedom. Hayek contrasts a free society with one in which those choices are made for us by others. Of course, for Hayek, the opposite of this free economy is collective ownership of the means of production, a society more like Soviet Communism than British or French socialism.
I doubt that any of us thinks letting someone else make all of the economic decisions about our private finances would be acceptable. At least there, we and the protestor have common ground. The question, as always, is one of degree. Hayek is one of those fear-mongers the right loves so well. Writing in 1944, he says that Britain and the US are treading the same path as the Nazis, that the seeds of socialism lead to collectivism and destruction of human freedom. That may be where we part company with our fellow citizen, the anti-ACA protestor. I don’t think the ACA will lead to communism.
Perhaps the anti-ACA protestor thinks collectivism is the next step, but I think her real motivation is the Hayekian principle: No one is going to tell Me how to spend My money. That idea is the justification for a lot of unpleasantness, like the guy who leaves an old car in his front yard because it’s His property and no one can tell Him what to do.
I have no idea how Justice Kennedy will resolve the question of whether someone can tell us how to spend our money, even when that somebody is Congress, in an enormous chunk of legislation. I’ll just say this. Even staunch libertarians agree that your freedom ends where my nose begins.
Or, as Hayek would say, your economic freedom ends where my bank account begins. The plain fact is that there is a lot of health care that doesn’t get paid for by the person who gets treated. That is ultimately reflected in the amount I have to pay for my health care, either in premiums or in taxes. Neither of those groups of protestors want to see people dying of untreated diabetes or high blood pressure. That woman who refuses to comply with the law, who doesn’t want anyone to tell her how to spend her money, needs to explain why she is perfectly happy to pay more for her health care because of all the non-payers.