The Freedom Bulletin

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)

The Defense of Marriage Act (DOMA) and the Affordable Care Act (ACA), also known as Obamacare, have both been in the news recently – DOMA because the Obama administration announced on Thursday that they would no longer defend it against lawsuits, and the ACA because a judge upheld its constitutionality against a religious-freedom-based challenge a week ago. Other than that, these two laws don’t have much in common. But this made me think, why did the Obama administration decide DOMA was unconstitutional while enthusiastically defending the constitutionality of the ACA?

DOMA defines marriage as between one man and one woman and, as a result, denies same-sex spouses of federal employees some benefits that are given to opposite-spouses. The Obama administration decided it violates the Equal Protection Clause of the Fifth Amendment. As Attorney General Eric Holder wrote, “The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus that the Equal Protection Clause is designed to guard against.”

The Democrats’ health reform law, the ACA,  makes it illegal (for the vast majority of people) not to buy health insurance, and punishes people who disobey this requirement with fines. The Justice Department’s website has a prominent page dedicated to its “vigorous” defense of the law in federal courts.

Why does the Obama administration believe Obamacare is constitutional but DOMA is not? DOMA merely stops some people from partaking in a benefit offered through their spouse’s employment with the federal government. It might be fairer if both same-sex and opposite-sex couples  were offered the same benefits, but (a) the fairest thing for gay, straight, bisexual, asexual, married, and unmarried people would be not to offer benefits to spouses at all but only to actual employees; and (b) people don’t have a fundamental right to government-given health benefits based on their spouse’s employment. The ACA, on the other hand, outlaws the decision to opt away from health insurance and instead pay for all of one’s health services oneself. In other words, it takes away the ability to spend one’s own money as one chooses, which is a fundamental right.

Wouldn’t it make more sense to allow people to form whatever romantic relationships they want (or none at all) without government labels or interference, and to choose whether to buy insurance or pay for health services in cash? I sure think so, but I guess that’s just me.