The Freedom Bulletin

It seems like things might, just maybe, be going in the right direction based on the Supreme Court justices’ questions during today’s hearing on the Affordable Care Act. Although predicting court decisions is always iffy, news sources described a majority of the justices as skeptical as they fired questions at Solicitor General Donald Verrilli. Justices Breyer, Sotomayor, Kagan, and Ginsburg are almost certainly in favor of the law, Justices Alito, Scalia, and Thomas are almost certainly against it, and it is Roberts and especially Kennedy who everyone is guessing about.

Here are some of the best points, in my opinion, that were made today:

“Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market. Therefore, you can make people buy broccoli.” ~ Justice Antonin Scalia

“Why do you define the market that broadly? It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant.” ~ Justice Scalia

“[The individual mandate] is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.” ~ Justice Anthony Kennedy

“You don’t know if you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need. But when you do and the government provides it.” ~ Chief Justice John Roberts, comparing the individual mandate to requiring everyone to purchase cell phones so they can call 911 more efficiently

“You can’t say that everybody is going to participate in substance abuse services.” ~ Justice Roberts

“The failure to buy health insurance doesn’t affect anyone. Defaulting on your payments to your health-care provider does. Congress chose for whatever reason not to regulate the harmful activity of defaulting on your health care provider.” ~ Michael Carvin, attorney for the National Federation of Independent Business and other private plaintiffs against the individual mandate

“If being born is entering the market…that literally means they can regulate every human activity from cradle to grave.” ~ Attorney Carvin

“It’s not really a health-care provision so much as a corporate giveaway. 300 million guaranteed customers for the insurance industry.” ~ Oliver Hall, a supporter of single-payer health care who protested against the individual mandate

Sources:

• Associated Press
• CBS News
• LA Times
• NY Times
• Wall Street Journal (live blog here)

Visit the Supreme Court’s website if you want to read a transcript of all of today’s arguments (PDF).

Did you know that the federal government can ban you from growing too much wheat on your farm? In the 1942 case of Wickard v. Filburn, the Supreme Court affirmed (unanimously, no less!) a federal law doing just that. Farmer Roscoe Filburn was fined for every bushel of wheat he grew that exceeded a government-set limit. According to the New York Times, this case will play a large role in the Court’s upcoming deliberations over the constitutionality of the Affordable Care Act (“ObamaCare”).

“To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.

Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.”

In other words, there’s a difference between banning people from making something themselves in the hope that they will have to purchase it from someone else, and actually requiring people to purchase something (namely, health insurance).

In my opinion, this isn’t a very big difference; philosophically and morally, both the Wickard decision and the Affordable Care Act’s  individual mandate are wrong. But out of these two violations of individual rights, the individual mandate is somewhat worse. Punishing people for growing something on their own land is bad enough, but the ACA would punish people for inactivity and would compel them to participate in an economic transaction that they do not necessarily wish to participate in. Additionally, while the wheat law allows people the option of going without wheat (admittedly not a very good or practical option), the ACA does not even allow people the option of declining to participate in the health care market.

Lawyer Michael A. Carvin, in a brief for the National Federation of Independent Business, made an excellent analogy:

“The uninsured regulated by the mandate are the teetotalers, not the bootleggers, of the health insurance market.”

ACA supporters almost always equate not having health insurance with receiving medical services for free and therefore becoming a free rider. Although this is true of some people, it is not true of all. Some people choose not to receive medical services at all. And some people choose to pay with their own money for each health service they receive, instead of paying for insurance. It would be just as wrong to force these people to purchase health insurance as it would be to force teetotalers to purchase alcohol.

It will be interesting to see if the Court agrees with this analogy.

As almost everyone in the world knows, Rush Limbaugh made some controversial comments about Sandra Fluke, a Georgetown law student who testified at a congressional hearing in support of requiring all health insurance plans to cover birth control pills for free.

Limbaugh said:

“What does it say about the college coed Susan Fluke [sic], who goes before a congressional committee and essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex. She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex.”

And later he said,

“So Miss Fluke, and the rest of you Feminazis, here’s the deal. If we are going to pay for your contraceptives, and thus pay for you to have sex, we want something for it. We want you to post the videos online so we can all watch.”

After almost all of the world erupted in rage at him, Limbaugh apologized.

Here’s my take: Yes, Rush made some bad word choices. It was somewhat mean to call Fluke a slut, not a perfect analogy to call her a prostitute, pointless to use the word “Feminazi,” and nonsensical to call for sex videos to be posted online. But he made a good point, which has been almost entirely overlooked: that indeed, to pay for someone’s birth control pills is to pay for them to have sex. Birth control pills are not essential, because they are only useful to people who have sex, and one can always make the choice not to have sex.*

The truth is, Limbaugh is right on this issue, and Fluke is wrong. Fluke and other proponents of free birth control are winning the public opinion war by making it seem like they are arguing for basic rights, and their opponents are trying to take these rights away. For example, Rep. Carolyn Maloney (D-NY) said, ”The right to space and time our children for our own health and the ability to manage our lives — this is a basic right, and they’re going after it.”

In actuality, Fluke and her allies are arguing a very aggressive position, one that violates the freedom of others. These people are outraged at the fact that there is some opposition to forcing all people to purchase health insurance that covers a discretionary product (birth control pills) preferentially to medically necessary products. Fluke does not just demand that she have access to birth control, or that she be able to make her own decisions about her life or her body. She does not even demand that health insurance plans cover birth control just as they would any other health service. Instead, she demands that all health insurance plans be required to cover birth control with no co-pays, co-insurance, deductibles, or cost-sharing measures of any kind; in other words preferentially to chemotherapy, antibiotics, heart surgery, casts for broken bones, and all other health services that actually treat a medical problem.

In other words, she demands that I be required to pay for a health insurance plan that does not work for me and that I cannot afford because it covers discretionary products that I will never use. Unwilling to make any sacrifices in her budget to accommodate her desire to be sexually active, she demands that I make sacrifices in my budget to accommodate her desire to be sexually active. Anyone who falls short of supporting this extreme position, advocating, for example, something as modest as allowing companies to charge a $10 co-pay for birth control pills as would be required for any other medication, is characterized as a misogynist who wants to control women’s bodies and lives. This is ridiculous. I am not trying to control anyone’s body or anyone’s life; I am simply trying to control my own money.

In summary, Fluke is advocating injustice, unfairness, and outright aggression against every American by advocating that we all be required to pay for something that we do not necessarily want and will not necessarily ever use. Maybe Fluke shouldn’t have been called a slut. But that doesn’t change the fact that on this issue, she is completely, utterly wrong.

Here are a few more random points that, in my opinion, people haven’t been paying enough attention to in the birth control debate:

1. Fluke complained that birth control can cost someone $3,000 over the course of law school, or $1,000 a year. Apparently she mentions this because she thinks it’s a huge burden, but this is not an unmanageable price, especially if you consider that according to some sources, the price is actually as low as $9 per month. Unlike some medications that give people with cancer their only chance at life, birth control is reasonably priced even without insurance.
2. Birth control is not a women’s issue. It really, really annoys me that commentators unanimously, casually, and without thought, refer to this as a “women’s issue.” It is not. Sex and reproduction (and sex without reproduction) have to do with both genders equally. People of both genders have an interest in being able to have sex without making a baby, and men do not want to become parents against their will any more than women do. It is demeaning to women to suggest that somehow they should be more associated with reproduction than men are.
3. Why is there such an outrage about co-pays for birth control pills, but no outrage about co-pays for any other medication? For example, my dad, who takes statins for his cholesterol, wondered why no one is marching on Washington to demand free statins. Unlike birth control pills, statins are actually needed to treat a medical condition.

One of the only sensible articles I have seen about this issue is this one by Cathy Cleaver Ruse of the Family Research Council. I highly recommend it.

* Yes, birth control pills are sometimes used to treat medical conditions, and in these cases, they should be treated the same as any other medically necessary product or service. In this blog post, whenever I refer to birth control pills, I am referring to those used for birth control purposes.

There has been a lot of uproar against the Obama administration’s requirement that all health insurance plans cover birth control pills for free, with no deductible or co-pay. Almost all of this uproar is from those who believe it violates Catholics’ freedom of religion, since Catholic institutions would be required to offer their employees free access to something that violates the policies of their church. This is true; the rule does violate religious freedom. But that is far from the most important reason to oppose it. The group whose freedom is violated the most by this rule, whose very existence it denies, is people who, for whatever reason, do not have sex.

Now, you might be saying, “Who on Earth does not have sex at some point in their lives?” Well, I’ve got news for you, some people don’t, whether asexual, celibate for religious reasons, or for some other reason entirely. They might be a tiny minority, but the fact that a group is small does not justify trampling on their rights by making public policy based on the assumption that they do not exist. Sex is not a need, and therefore birth control pills are not a need. It is something that most (but not all) people enjoy and find important, but you can live, and be perfectly healthy, without it, just like any other activity that some (but not all) people enjoy, such as photography, gambling, skiing, or gun collecting.

All of these are activities that people should be free to participate in if they choose, but no one should expect to have, for free, the material goods that are needed for optional activities. It is one thing to argue that society should collectively pay for the basic necessities of life, such as food, shelter, clothing, transportation, and some medical services, such as antibiotics for pneumonia, chemotherapy for cancer, or casts for broken bones. But just as no one expects society to collectively pay for cameras, poker chips, skis, or guns, no one should expect free access to the things that they need in order to have sex, such as birth control pills. After all, I haven’t heard anyone – not the NRA, not GOAL, not the Second Amendment Foundation - no matter how strongly they support gun rights, demand that anyone be given free guns.

Again and again, on TV, in newspapers, on blogs, and on Twitter, people have been going on and on about the importance of “women’s health,” how women need access to “comprehensive health care,” how it is ridiculous for there to be controversy about whether women should have access to birth control, and even how Obama’s compromise measure is a return to the “Mad Men” era. What these people are saying amounts to the following:

Access to X = Getting X for free

That is clearly wrong. People should have access to any product they want, meaning that they should be able to purchase it on the free market, as long as they don’t interfere with the freedom of anyone else. No one is arguing that birth control should be banned, but merely that people who don’t use it should not be forced to pay for it.

As a side note, it is true that people do not have true access to birth control in today’s society. But money is not the reason. The reason is the Durham-Humphrey Amendment. Birth control pills are only available by prescription, which means that people are not allowed to have them without a doctor’s permission. Many (perhaps most) doctors require people, at some point, to undergo an invasive, degrading examination in order to have birth control pills, which means that the pills are off-limits to people who are modest or who, for whatever reason, are not willing to undergo such an exam. Unlike having to pay, this is a real problem, and one that proponents of birth control (and freedom in general) should be outraged about.

If one thing is for sure, it’s that medical costs have gone up recently. A new study showed that health insurance prices rose, on average, 9% in the past year. The Affordable Care Act may very well share the blame for this, and so might the fact that doctors perform too many medical procedures (surprisingly, doctors themselves admit to this).

But logic indicates that the main cause of how much something costs is…well…the price the seller chooses to charge. You wouldn’t think the New York Times would have to do an article on this obvious fact, but they did.

The reason why doctors and hospitals charge so much for their services is simple: because they can do so without losing customers. If you have cancer, for example, you might need chemotherapy to live, and if you have a broken bone, you need to get a cast. People don’t have the option of going without these things if they decide they cost too much money. In economic terms, the demand for health services is inelastic. Governmental policies have exacerbated this problem – for example, the Durham-Humphrey Amendment by requiring people to visit a doctor and get a prescription before being allowed to buy medication, and the individual mandate by actually requiring people by law to buy health insurance.

The only solution to this problem, in my opinion, is price ceilings. This idea has been floated around a little bit, including in California where a bill called AB 52 would limit health insurance price increases, by Massachusetts Governor Deval Patrick, who created a similar policy, and more recently, State Rep. Ron Mariano, who more sensibly focused on the prices of health services themselves, proposing a bill that would limit prices paid to the costliest hospitals. This bill is definitely a step in the right direction.

As such an ardent advocate of liberty, it might appear strange to support government telling businesses how much money they can charge. Shouldn’t people be able to engage in any transactions they choose? But I look at excessive prices as akin not to consensual transactions but to extortion. People have a right to their own money, and doctors do not have a right to suck a person dry of all their money for performing a medical procedure that the person needs to live. Doctors, just like any other merchant, deserve compensation for the services they sell, but because their customers are not truly choosing to purchase those services, doctors should not be allowed to take so much money that people have no more money left to spend on anything else. It would be impossible for everyone to agree on a particular price at which a transaction becomes extortion. But people should certainly be discussing this question and working toward instituting a price ceiling on medical services, instead of continuing to let doctors and hospitals extort people.

There’s nothing wrong with the government setting maximum prices that sellers are allowed to charge for goods and services that have inelastic demand. The Boston Herald called Mariano’s idea “a move toward government price controls, plain and simple.” But I believe there is nothing wrong with that.

Good news for liberty from the 11th Circuit Court of Appeals – in a 2-1 opinion, the three-judge panel ruled that it is unconstitutional for the federal government to require Americans to have health insurance. The decision was part of the lawsuit by 26 states against the Patient Protection and Affordable Care Act (“Obamacare”).

According to the majority opinion written by Judges Joel Dubina and Frank Hull:

“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”

Read the full opinion (PDF).

…is the Obama administration’s decision to force health insurance companies to provide free birth control and preventative services for women, as well as this editorial in support of it by Health and Human Services Secretary Kathleen Sebelius.

The new policy requires insurance companies to cover, with no co-pays, co-insurance, or deductibles, a variety of services including contraception, sterilization, checkups, domestic violence screenings, STD and contraception counseling, HPV testing, gestational diabetes screening, breastfeeding counseling, and breastfeeding equipment. The reasoning behind this, Sebelius writes, is that women “have unique healthcare needs” and “are more likely to need preventive healthcare services.”

Feminism is the belief that men and women should be treated equally. Although many people extol how good the new policy is for women, it is anti-feminist to give women special attention and care and to make generalizations about how many health services they need. It is sexist to cover gender-specific health services for women but not men. It is also sexist to cover gender-neutral health services – including checkups, STD counseling, sterilization, contraception, and domestic violence screening (men can be abused too) – when women use them but not when men use them, as the new policy seems to do.

This brings me to another reason why “free” birth control is wrong: as I explained earlier and will repeat only briefly, it is unfair. The purpose of health insurance is to cover catastrophic medical expenses that cannot be prevented. Using birth control, becoming pregnant, and even going for a checkup are choices that people can make, and are therefore inappropriate for insurance. There is a completely free way of preventing pregnancy; it is called abstinence. Sex is important to many people, but that is not a good reason for everyone to be forced to subsidize it. After all, guns are important to many people (and protected by the Second Amendment), but I have never heard anyone suggest that every American be provided with a free gun. News articles and scholarly research are important, but the Obama administration has not announced any plans to force websites to provide these for free. Why is sex considered worthy of subsidizing, while research and the right to bear arms are not? Birth control, STD testing, and breastfeeding equipment are all goods that people should be free to purchase if they would like, but there is no right to get them for free.

Fairness demands that people have the option of purchasing health insurance plans that do not cover services related to contraception, STDs, or pregnancy, and gender equality demands equal insurance coverage for both genders. Despite what so-called advocates for women think, providing “free” birth control (and all the other free services included in the Obama administration’s policy) is both anti-feminist and unjust.