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Thursday, July 05, 2012

ACA Reflections, Part II: Here's What Really Bugs Me

One more comment on the Supreme Court decision in NFIB v. Sibelius, and then I'll stop talking about it (for now). One thing that has bothered me all along about the way that those on the right talked about the individual mandate is the way they conceptualize the autonomy interest and hence the "choice" involved. Since Roberts's and the the joint dissenters' opinions both more or less incorporated the arguments floating around among conservative legal academics and in public discourse, it assumes this same bothersome conception of choice. What's more, I find connections between this conception of choice and the current approach to that other "choice"-laden domain--abortion law.

More below the fold.... 

The conception I am referring to is the classic libertarian conception, I suppose. It is the notion that choices are made at a specific, discreet moment in time, based on preferences that are more or less exogenous. It assumes choices that are unconstrained--or at least, that any existing constraints are legally irrelevant. Thus, according to this view, individuals are generally uninsured because they choose not to purchase that particular consumer product, and it is irrelevant that they may later consume health care that they cannot pay for, because the focus of this argument is only on the singular moment of choice.

Of course, as many have pointed out, most of the uninsured float in and out of the insurance market, and they often don't "choose" to be uninsured but are uninsured because they lose their job-based insurance and then can't get insurance on the individual market because of cost prohibitiveness and/or pre-existing conditions. They consume health care regularly, whether insured or not, and "choice" has very little to do with it -- other than perhaps the "choice" to forgo needed preventive care or early screening due to cost. Of course, this is not true of all of the uninsured, but it is true of the overwhelming majority of them.

Similarly, many of the anti-abortion measures that are currently being considered or passed in the states--such as those to require women's choice to be more informed by showing her an ultrasound, making her hear the fetal heartbeat, and/or giving her certain information about the fetus (such as that it is a "whole, separate, unique, living human being") focuses in much the same way on a "choice" as occurring at one moment in time, mostly unconstrained, and independent in some bizarrely unrealistic way. Taken even in their best light and at face value, such laws seem to assume that this information--perhaps given with a 24-hour waiting period for it to really "sink in"--can change the woman's choice, because the choice occurs in this 24-hour-or-so interval, during which she gathers the information about abortion and makes her free and autonomous choice. The law is aimed simply at making sure she has enough information to make a truly free and informed choice. Again, for some women, this may well be how it works, but it ignores the multiple ways in which the decision for many women is not entirely free and autonomous, beginning with the (not always entirely free) decision to become pregnant in the first place, the constraints placed on her by financial, familial, and job concerns, and so on. More information about the fetus is simply not going to affect any of those constraints.

This critique of the atomistic view of the individual is, by no means, a new one or one that is original to me (see, e.g., Robin West). But it is one that remains relevant. What do you think is the best response to it?

Posted by Jessie Hill on July 5, 2012 at 01:26 PM in Constitutional thoughts | Permalink


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I'm in favor of universal health care, but that idea is troubling to me.

Someone is standing on a bridge. It's legal to stand where she is standing. Depending on the circumstances of her life, she's either preparing to take a running jump or admiring the sunset. A police officer walks up to her and forcibly pulls her back to the middle of the road.

Now what if we, solely by examining the economics of the neighborhood, statistically establish that she was likely preparing to jump? Is the state action more justified, since the woman likely didn't have any choice as to whether to be cheerful or glum given the economically depressed condition of the area?

Really, advancing the idea that one has no capacity for making a moral choice is the one thing that likely to lead people to be overwhelmed by circumstance. It's like teaching a man caught in a storm the strength of the wind.

Better an atomistic view than an athomistic view, perhaps.

Posted by: Harlot's Ghost | Jul 7, 2012 7:28:41 PM

Muslims and Amish folks are exempt from the Obamacare mandate.
Do they not use health care? If one is picked up off the road and taken by EMS to an emergency room, will he be denied treatment?

I am an atheist and a scientist and my morals prohibit me from betting against my health or life by means of insurance. Will I also be exempt from Obamacare?

Posted by: Jimbino | Jul 6, 2012 3:14:25 PM

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