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.

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.

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.

On Thursday, former Massachusetts governor Mitt Romney gave a much-publicized speech about health insurance policy…but the speech ended up being a repeat (with a little more detail) of what he’s been saying for a while now. Romney is standing by the Massachusetts law he signed in 2006 requiring all residents to have health insurance (the individual mandate) while condemning the law President Obama signed doing the same thing nationally.

In the speech (and accompanying PowerPoint presentation), Romney said that apologizing for the law he signed as governor might make him more popular with conservatives but “It wouldn’t be honest.” (I couldn’t help thinking for a second, “Well, that hasn’t stopped him before…”) Kudos to Romney for sticking to his guns instead of flip-flopping, but his speech showed that while at least somewhat consistent, he is not a friend to liberty.

Somehow, to Romney, requiring everyone in a state to buy health insurance is a way to “help people get and keep their health insurance,” while doing the same thing nationally is a “government takeover.” He (and his supporters, such as State House Minority Leader Brad Jones) emphasized states’ rights, the new taxes, spending, Medicare cuts, and bureaucracy of Obamacare, its unpopularity with voters, the way it was passed, and its impact on jobs. They argue that the individual mandate is the only way, besides letting people go without needed health services, to prevent the free rider problem where poor people get sick and receive health services that they cannot (and do not) pay for.

But as a Boston Herald reader points out, choosing not to have health insurance is not the same as relying on taxpayers to bail you out. It is conceivable that a person could choose, instead of buying insurance, to simply pay for any health services he or she may receive. This is a risky option and many people would not consider it a good one, but people should have that option, and banning it, as Romney did in Massachusetts and Obama and the Democrat-controlled Congress did nationally, violates everyone’s rights. As long as payment is strictly enforced, a small amount each month if necessary, this would be a better solution to the free rider problem than the individual mandate system, where poor people’s health insurance is still subsidized by tax money. (Price ceilings would make such a system even better and more affordable for everyone, but I digress).

People should oppose the national health insurance “reform” law because it violates people’s rights. People’s rights should never be violated, whether by the United Nations, the federal government, state governments, local governments, or other individuals. Romney may oppose that law, but (as Jeff Jacoby pointed out back in December) he does not oppose it for the right reason. If he did, he would have to oppose the Massachusetts law as well.

Fighting back against Obamacare and its individual mandate is not just for Republicans. Attorney General Chris Koster of Missouri, a Democrat, filed an amicus curiae brief in the 11th Circuit Court of Appeals, supporting the lawsuit by 26 states against the largely Democrat-supported health insurance reform law:

“Within the health care arena, the power to penalize one’s decision not to purchase health insurance is indistinguishable from granting Congress the power to penalize individuals for not obtaining an annual check-up or prostate exam, for not vaccinating one’s children, or for not maintaining a specific body-mass,” Koster wrote.

And what a sad state of affairs that would be. Thank you, AG Koster.

Amicus curiae brief (PDF)