The Freedom Bulletin

I’m sure you’ve heard the wonderful news that Judge Henry Hudson ruled the individual mandate – the part of the Patient Protection and Affordable Care Act that requires almost all Americans to buy health insurance – unconstitutional. Ilya Shapiro of the Cato Institute writes, “Today is a good day for liberty,” and I couldn’t have said it better myself.

The federal government’s logic in requiring people to buy insurance, Hudson wrote,

“…could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence…

“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.”

This ruling was in the case Virginia v. Sebelius, a lawsuit that Ken Cuccinelli, Virginia’s Attorney General, brought against the U.S. in the federal court for the Eastern District of Virginia. The feds will probably appeal, and the case is likely headed to the Supreme Court. A couple of judges have made the opposite ruling in other cases, and there are similar lawsuits going on, including one by Florida and 19 other states, so the fight is far from over. But none of that diminishes the greatness of today’s ruling.

Read more about the awesome news:

• Full text of the ruling (PDF)
• CNN: Virginia judge rules health care mandate unconstitutional
• Fox News: Virginia Attorney General Hails Ruling Against Health Care Law
• HealthCareLawsuits.org – a great site chronicling all of the anti-Obamacare lawsuits

December 14 update: The Boston Herald had some great coverage today of this ruling and its implications in Massachusetts:

• Critics eye Mass. Health after Obamacare ruling
• Tea Party claims win with ruling
• Michael Merlina, the Massachusetts man who is suing the state for its individual mandate, says “We need people to stand up for us.”
• Court battle casts pall over Mitt Romney run

It just keeps getting better! Not only is Virginia suing against the federal requirement to have health insurance, but a man named Michael Merlina is suing the Massachusetts Health Connector Authority, the entity in charge of implementing the state’s health insurance mandate. He was fined $2000 for failing to have insurance, and the Connector denied his appeal.

It’s awesome that someone is challenging the state’s individual mandate in the court system, but even better that three of out the four gubernatorial candidates (at least to some extent) support Merlina and criticize the individual mandate.

Republican Charlie Baker isn’t explicitly anti-mandate, but he makes a good point about Massachusetts’s long list of benefits that all insurance plans must cover:

“The whole plan was for people to have more affordable options, and Gov. Patrick eliminated them. Michael Merlina is arguing that the price of health insurance has become unaffordable, and he’s right.”

Said Independent Tim Cahill (I’m pleasantly surprised to learn that he’s against the mandate):

“He’s not asking for a handout – he just wants to be left alone. I feel for him. I hope he wins, and throws the whole insurance mandate up in the air.”

And Green-Rainbow candidate Jill Stein is surprisingly anti-mandate as well:

“All health-care nonreform did was created a windfall for insurance and pharmaceutical companies that are in bed with Beacon Hill.”

Health-care nonreform…what a great name! I might have to start using it.

A couple of years ago, the individual mandate was considered a moderate measure, supported by Democrats and Republicans alike and only opposed by the “far right.” In the early stages of the federal health-care nonreform debate, the individual mandate was considered a given and was rarely mentioned. All of the debate focused on the public option, Medicare cuts, abortion funding, and other things that, although important, are not as important as the mandate from a pro-liberty point of view. Now almost every time federal health-care nonreform is mentioned in the news, the individual mandate is mentioned, and usually called unpopular and/or controversial. How awesome that three out of four gubernatorial candidates in Massachusetts, where the individual mandate was first enacted in 2006, disapprove of the mandate to some extent. People are finally realizing what freedom truly is and how severely the individual mandate violates it.

The Milwaukee teachers’ union is suing for health insurance plans that cover Viagra. This is happening as the district is in the middle of a budget crisis and has laid off 482 teachers. Taxpayer-funded Viagra would cost $786,000 or enough for 12 teachers to keep their jobs.

The lawsuit claims that excluding Viagra from insurance coverage discriminates against men. According to MSNBC…

“In recent years, several lawsuits have claimed that employer health plans discriminate against women when they cover Viagra but not contraceptives or infertility treatment.

But the Milwaukee union says males are treated unfairly here. In one brief, its lawyers argued that vaginal cream, anti-bacterial medicine and estrogen replacement medication for female sexual dysfunction are covered. Other options such as penile pumps and implants included in the plans “are far less desirable than oral medication,” the filing said.

District spokesman Philip Harris said school officials won’t comment because “we just want to leave it alone.” But Miriam Horwitz, an attorney representing the board, argued in court filings the drugs weren’t necessary to treat life-threatening disease or have children.”

I have an idea – none of these things should be covered! The only things that should be covered by health insurance are things that people need in order to be healthy. This is especially true of plans that are taxpayer-funded.

You don’t need to have sex or have children to be healthy, so contrary to the opinion of the school board’s lawyer, neither Viagra nor infertility treatments (or maternity care, for that matter) should be covered. Whether to have sex or have children is a choice, and it is unfair for people who choose not to do these things to subsidize the decisions and preferences of those who do.

No Viagra, no infertility treatments, no penis pumps, no contraceptives, no maternity care, and no estrogen replacements. Discretionary procedures and medications should never be covered by health insurance, no matter what the person’s gender. Paying only for things that are medically necessary is the fairest policy for everyone.

I don’t usually go to sites like AmericanProgress.org, which probably isn’t surprising given my mostly libertarian / conservative political views. But I recently happened upon an article at that site by Ian Millhiser, claiming that “it is absolutely clear that the health reform bill survives constitutional scrutiny,” that it was “clearly erroneous” to allow Virginia Attorney General Ken Cuccinelli’s lawsuit against the law to proceed, that the lawsuit is “baseless” and “wholly without merit,” and that the decision “sadly allows him to continue to waste taxpayer dollars on this frivolous lawsuit.”

I disagree with these claims, to say the least. But there are two arguments in particular that Millhiser makes that I would like to respond to.

First of all, he quotes Justice Antonin Scalia, who once said, “Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” According to Millhiser, everyone agrees that it’s constitutional to ban insurance companies from refusing coverage to people with pre-existing conditions. If this happened but there was no individual mandate requiring people to buy insurance, then only sick people would buy health insurance, and prices would rise. I’m sure everyone doesn’t agree that the pre-existing conditions law is constitutional, but I’ll give him these first two points.

I disagree with Millhiser and Scalia, however, that if Congress has the right to pass a law, it has the right to do whatever it takes to make that law effective. Congress has the right to defend America from foreign invaders, but it doesn’t have the right to institute a draft, in my opinion, even if a draft were necessary for a strong military. Congress has the right to ban the hijacking of airplanes, but in my opinion, it doesn’t have the right to force people to take their shoes off and go through strip search machines. Individual rights come first, and the government is never justified in taking away people’s freedom, even if that is necessary to make a law effective.

Second, Millhiser claims that the individual mandate is equivalent to prohibiting businesses from using racial discrimination against potential employees or customers, since these both involve requiring people to engage in economic activity. This comparison is completely off base.

Banning segregation affects people only if they choose to own or manage businesses, and it affects them only in their role as a business owner or manager, not as a private individual. Additionally, it does not require anyone to engage in economic activity. It simply says that if someone wants to run a business, they must accept all customers regardless of race, and not use race in hiring decisions. Everyone still has the option of not running a business.

The individual mandate, however, tells people that they must use their money to buy health insurance. It tells people what to do with their own, private money that they have earned, and it applies to everyone.

So anti-segregation laws and the individual mandate are vastly different. One applies only to people who choose to run businesses and applies only when they are acting in their professional capacity. The other applies to all people in their role as private citizens. It is completely reasonable to find the former constitutional but not the latter.

On Tuesday, Missourians will vote on a ballot measure to outlaw the individual mandate, the part of health insurance reform that requires all Americans, except those who are unable to afford it, to have health insurance. From Missourians for Health Care Freedom, the organization that supports the initiative…

“Patients should have the right to pay directly for medical services with their own money. That’s because when consumers control the dollars, the patient makes the medical treatment decisions… Preserving the rights of patients to pay directly for medical care ensures that patients – not government bureaucrats – decide which doctor to see or what medical treatment to choose.”

Support Proposition C!

The Democratic National Committee decided to try to be cute and create a parody of conservatives called the Republican Tea Party Contract on America. The items on the “agenda:”

1. Repeal the Affordable Health Care Act (Health Insurance Reform)
2. Privatize Social Security or phase it out altogether
3. End Medicare as it presently exists
4. Extend the Bush tax breaks for the wealthy and big oil
5. Repeal Wall Street Reform
6. Protect those responsible for the oil spill and future environmental catastrophes
7. Abolish the Department of Education
8. Abolish the Department of Energy
9. Abolish the Environmental Protection Agency
10. Repeal the 17th Amendment

This list doesn’t seem half bad!

Take, for example, abolishing the “Affordable Health Care Act.” That would (gasp!) allow people to decide for themselves whether or not to buy health insurance. Contrary to what the mock Contract says, abolishing this law would not “put insurance companies back in charge” but would restore some freedom to consumers. If forcing everyone to buy health insurance doesn’t put insurance companies in charge, nothing does.

And abolishing Social Security isn’t a bad idea either. People should be able to decide for themselves how or whether to save for retirement instead of having money taken from them. People who have paid into Social Security are entitled to receive benefits, but if Social Security was phased out starting with people who are just entering the work force, then people would no longer need it because they would be able to keep their own money and save, spend, or invest it as they wish.

If the DNC was being serious with this Contract, then I would applaud them for having some good ideas. Not perfect, but good overall. It’s too bad they’re being sarcastic, because instead they just come off as ignorant and mean-spirited.

President Obama recently gave a speech praising the recently passed version of health insurance reform and warning insurance companies not to use the new law as an excuse to raise prices. But unless strong measures are taken to prevent this, “Obamacare” will actually cause the price of health insurance to rise.

I oppose Obamacare, primarily because it requires all Americans to have health insurance. In my opinion, this violates everyone’s rights because people have the right to decide how they want to spend their own money, as long as they don’t do anything that violates the rights of anyone else. But according to economic theory, the individual mandate has a bad side effect as well – it makes the cost of health insurance go up.

If you haven’t studied economics before, here are the basics:

Usually, the higher the price of a good, the less the demand. Makes sense, right? Also, the higher the price of a good, the higher the supply, because producers are more willing to make a product if they can sell it for a high price. The supply and demand curves (or lines) can be shown on a graph. The point where the two lines intersect is called the equilibrium. This represents the quantity and price that will be produced in a free market.

However, by requiring everyone to purchase a product (in this case health insurance), the government stops demand from responding naturally to price. The degree to which demand for a good responds to price is called price elasticity of demand. People will buy necessities such as food, water, or insulin for diabetics regardless of their price. In economics-speak, the demand for these goods is inelastic. The demand for things such as lattes, CDs, and stuffed animals is elastic, because people can live without them and therefore tend to buy less of them if the price goes up. When demand is perfectly inelastic, the demand curve looks like a vertical line.

By forcing everyone to buy health insurance, the government makes the demand artificially inelastic. The problem with this is that when demand is perfectly inelastic, price basically approaches infinity. If consumers are going to buy something no matter what it costs, you can bet that producers are going to charge a lot.

Bottom line: according to traditional economics, the individual mandate will make the cost of health insurance go up.