Healthcare in America: A Thorny Knot

Introduction

Before launching into the substance of my first essay, I’d like to take a moment to acknowledge what a pleasure and honor it is to be asked by Harold Heie to participate in the Respectful Conversations project.  I’m glad to have been recommended to Harold by my colleague, Adam MacLeod, who participated in last year’s inaugural Respectful Conversations series.  Thank you, Adam, for passing my name along, and thank you, Harold, for inviting me to write this month.

I’d also like to say what a treat it is to converse this month with Dr. Clarke Cochran of Texas Tech University and the Covenant Health Care System in Lubbock, Texas.  I first learned of Dr. Cochran’s excellent work in the intersection of religion and politics when I was a joint-degree student in law and religion at Emory University in the late 1990s-early 2000s.  His sterling reputation precedes him, and I anticipate that I will learn much from him as we try to untangle the painfully thorny knot that is the American health care system and the Christian’s role in it. 

I can’t let it pass before I note Dr. Cochran’s longstanding affiliation with Texas Tech University.  Even though I didn’t graduate (or attend) Tech, I do consider it to be my “family school”.  Three generations of my immediate family, including my grandfather, mother, father, and oldest brother graduated from Tech, as did an uncle, aunt, and cousin of mine.  My family loves Texas Tech, and I consider it a serendipitous high point of my career to date to engage in an extended public dialogue with one of Tech’s most distinguished scholars.

It is quite fortuitous that Harold asked me to write about the American health care system and the Christian’s role within it.  Even though I have been a law professor for the past eleven years, and a lawyer practicing in the area of health care law for the six years prior, and though I have published about different topics in the health care system, I have not intentionally tried to write an extended theological-ethical reflection about the Christian’s role in the health care system.  So, first and foremost, I consider this to be an opportunity to consolidate and refine my thinking about my different roles in the health care system: as one who thinks and writes about it as a law professor and as a patient and consumer who has interacted with the health care system quite a bit over the past eleven years, and one who executes both roles as a disciple of Jesus.

Because I am “working out my own salvation” in this area of my life, “with fear and trembling,” I thought I would break with the traditional argumentative structure of a persuasive essay, and instead offer a series of numbered and lettered paragraphs – more episodic thoughts about the topic Harold has given us.  In what follows I weave my own story – my own interactions with the American health care system, with my reflections – legal, economic, political, and theological – about that system. 

Biblical Reflections

1. I am working with the famous aphorism attributed to Karl Barth – I have my Bible in one hand and a newspaper in the other.  I try, however imperfectly, to make the Word of God the rule for my life in all things.  As I read it, I find precious little guidance as to how a government should structure the services it provides to its citizens.  In particular, I find nothing, either approving or disapproving, large-scale, top-down provision of health care services to a polity.

            A.  I find a strong injunction in the New Testament to give myself for the benefit of my fellow suffering human being, who Jesus likened to himself in Matthew chapter 25.  I am to visit the prisoner, feed the hungry, and yes, care for the sick.  Indeed, what’s sobering about this little parable in Matthew 25 is that Jesus seems to say that the Christ follower’s salvation depends on how conscientiously he attends to the physical needs of others.  This parable is a biblical personification of the little ditty “if it is to be, it is up to me.”  If the sick are to be cared for, it is up to me. It’s not another’s responsibility.  It’s my responsibility.  If I am to demonstrate my faith in Jesus, well, I really have to do it and get out there find some sick people to minister to.  I don’t mean that I can curry God’s favor by doing good deeds.  What I do mean is that I show Christ himself and the world that I am truly his disciple if I get down to peoples’ suffering where they are. 

            B. Interestingly, I can find no similar instruction by Jesus or Paul or any other New Testament writer for kings, rulers, or governments to take care of the sick of their kingdoms.  I suspect that such an instruction would sound discordant to Jesus’s original disciples or the first Christians and downright silly if it ever made it back to Herod, Caesar, or any other first century ruler.

            C. I perceive (though have no real empirical basis for this judgment) that Contemporary Christians have lost the sense of how the Christian Church, writ large, has ministered to the sick in the two millennia since Christ.  What started as individual and congregational care for the infirm has slowly morphed over the centuries into Christian denominations organizing not-for-profit hospitals or hospital systems, all of which collect fees for goods and services provided to patients.  It is rare indeed when those hospitals or hospital systems charge significantly less than their for-profit or secular non-profit peer facilities or systems.  It’s also rare when these hospitals or systems do not have a policy that they enforce regarding collection of unpaid fees.  In other words, our Christian-affiliated hospitals look much like their secular counterparts in aggressive pricing of health care services and collection practices.

            D. So, what would our churches today look like if we took seriously Christ’s instruction to “look after” [sic] the sick in our midst (MT 25:36)?  Certainly, this includes the ministry of presence, or suffering with the sick by being near them.  But it also must mean something more.  It must also mean seeing that their real, on the ground, physical needs are actually met.  It must mean that our churches are serious about paying what it takes to make sure that our congregants return to health. 

            E. But let’s be real about Christ’s injunction in Matthew 25.  Though there is excellent New Testament teaching that those in the Church should first take care of the “household of faith,” (Galatians 6:10), Christ himself wasn’t so insular.  Nowhere in Christ’s Matthew parable does he limit the ministry to the sick for that which only benefits Christ’s disciples.  Therefore, it seems to me that Christians’ healing ministry should be like that of Christ’s himself – open, inclusive, and willing to engage the hopeless and those in despair.

Rights Talk

2. No person of goodwill – whether Christian, Jew, Muslim, Sikh, Hindu, or whatever else – is glad to see a fellow human being physically suffer.  I’ve had my share of physical agony in my still relatively young life – far less than some people, though.  And I know this: overwhelming pain and suffering distorts the one who suffers and takes him, for however long the suffering lasts, out of true fellowship and communion with other human beings.

            A. How much worse must this suffering be if the person has no reasonable way of alleviating it? The person must wallow in their own misery, knowing there is no possibility for paying for the people or services, like hospitalization or specialized medical treatment that will mollify their agony. Or, if the person or her loved one forges ahead and seeks treatment without having a way to pay for it, what follows is a gnawing terror and desperation associated with having contracted for a debt that the sufferer might never be able to repay.

3. That prolonged physical suffering is sub-optimal and having no way to pay for it is even worse does not necessarily mean that the federal government should provide (pay) for that care, particularly as a claim of right.

            A. I recoil at the prospect of making much of anything a “claim” right, as in something that an American can take hold of or claim because of the mere fact that the person is in America.  As I understand it, America is built on the idea that her people can make of themselves what they want without the government’s goodies softening the blow if they fail or have some calamity happen to them.

            B. Further, a “right” is that which you and the government recognize that it cannot do to you, because what you seek to do is bound up in what it means to be a free human being.  For example, the government cannot abridge your right to worship God as you choose because humanness, by its nature, entails the person’s choice to render obeisance (or not) to a god or gods.

            C. Bound up in the idea of a “right” is a corresponding limitation on government power and not necessarily a demand for that which the government must do for you. 

            D. The genius of the American experiment in liberty is that the best of our constitutional rights are recognized in the text of the Constitution.  Thus, these rights are pre-political and not created.  The rights originally found in the Constitution (free speech, free exercise, due process, etc.) are not small carve-outs from vast expanses of government power.  Rather, they are bulwarks and barriers – capacious buttresses from a government that otherwise seeks to aggrandize authority and control for itself.

            E. So, no, I do not believe that health care is a “right,” constitutional or otherwise which must be provided by the government.  If the Supreme Court ever does decree that the 14th Amendment’s Due Process Clause means that access to government-provided health care is a “right,” that means that the government must provide it – by hook or by crook.  And that will mean significant expenditures in the federal budget, which also means that tough choices will have to be made about the line items that will have to come out of the budget. 

            F.  Even if health care is never formally ensconced as a claim right, it is absolutely clear from well-established Supreme Court doctrine that Congress could, if it wanted to, create a nationwide, all-encompassing, universal system of health care for everyone – rich or poor, black or white, young or old.  The power to do so would likely fall under Congress’s Taxing and Spending Powers found in Article I, section 8, clause 1 of the Constitution.  There is no doubt that Congress could legislate for a universal health care system pursuant to the Taxing and Spending Clause.  Medicare and Medicaid are two examples of partial universal systems created pursuant to Congress’s Spending Power.  There is no doubt, constitutionally speaking, that Congress could expand Medicare, for example, to cover all Americans or create a whole new universal program out of whole cloth, again, pursuant to the Taxing and/or Spending Clauses.

            G. If Congress ever decided to create such an all-encompassing universal system, it would likely do so under the guise that it is for the Nation’s common good.  The common good is that which benefits all of us.  Roads, clean water, a common defense are just three examples of goods that benefit all citizens and therefore probably ought to be provided by the government.  The argument that health care is a common good comes from the idea that good health is necessary to fully actualize oneself and be a robust member of the larger community.  Without health, a citizen is smaller, more insular, and is likely entirely focused on recovering her own private well-being and not how she might interact with other members of the community.

4. It seems to me, then, that if it were obviously advantageous for Congress to create a fully universal health care system, it would have already done so.  It hasn’t.  That’s probably true for at least a few reasons, not the least of which is what I call Americans’ reluctant satisfaction with the financial protection they receive from their current health insurance.  They may not be totally satisfied with the current fee-for-service system, but their current insurance is better than what they would have with a government-sponsored plan.  More on this below.

5. Congress has tried what I call “partial” universal systems – with mixed results.  Take for example the Veterans Administration system.  Now, is it nice that our nation’s veterans have their health care paid for and provided through a nationwide network of doctors and hospitals?  Undoubtedly, it is.  Frankly, providing a veteran (and family’s) health care needs is the very least that Americans can do to show their appreciation for the veteran’s service. But it is also true that our veterans are captured into the system.  If the veteran wants the government-provided benefit, he knows that he must come to the VA hospital to get it. And because veterans are so captured or stuck in the VA system, those who administer the system feel no burning need to compete for patients as do other players (public or private) in the system. Hence the problems and controversies with the VA we have seen in recent years.

Personal Reflections

6.  The American health care system has never failed me.  It came through for me when, as a two-year old toddler, I was flown by helicopter to the children’s hospital in San Antonio to receive several days of inpatient treatment under the breathing tent for severe bronchitis.

            A. The system came through for me as I grew up and saw my doctor for a balky knee, and as I went to the emergency room for a sudden and acute stomach ailment.  I was treated promptly and professionally, and the storm passed after a while.

            B. The system came through for me when I was a professional student and I contracted a rough case of pneumonia.  It knocked me out of my regularly-scheduled law school exams.  However, I had nary a worry about meeting my health care needs, though, as I was covered by my (then-new) wife’s exceptional health insurance from her employer.

            C. The system came through for me when I first broke my tailbone and later my elbow falling down my stairs at home.  (No, my wife didn’t push me.)  There were no problems with my care, as the top-shelf health insurance I had as a fringe benefit of employment with two leading law firms in Nashville, facilitated excellent emergency and follow-up care.

            D. The system came through for me as I’ve dealt with the diagnoses, flare-ups, and treatments of a couple of besetting gastrointestinal issues.  I’ve never given a second thought to the several times I’ve gone to the emergency room for these issues.  Frankly, a few $100 insurance co-payments have been nothing to me as I’ve sought relief in the ER.  I’ve given only a fleeting thought to taking the ambulance (twice) for these issues.  It’s not bothered me (from a financial perspective) that I’ve been admitted to the hospital twice for these issues, and I wasn’t concerned (about money) that these issues have required several rounds of invasive diagnostic testing and one surgery.  My wife and I have always had enough in savings to pay any cost-sharing for which we have been responsible.  Further, and most importantly, we knew that the outstanding health insurance provided by my university would cover the vast majority of the costs associated with my care.  For co-pays and other costs not covered by my health insurance, we used yet another fringe benefit of my employment, our flexible spending accounts.  In no way have my GI issues financially devastated me or my family.  In fact, if I were to put pen to paper, I would guess that we have not had to pay much, if any, money that we did not already plan to pay, in the form of either monthly health insurance premiums or monthly deductions for our FSAs.

            E. The system came through for me as I have filled prescriptions for me, my wife, and my children and they have gone to the hospital and diagnostic testing for a whole host of ailments and accidents.  Looking back over the past eleven years of my current employment (and really since my wife and I were married almost nineteen years ago), the health insurance from our various employers has been exceptional, and we’ve had no worries about how we’ll pay our medical bills.

Private Health Insurance

7.  The way that proposition, immediately above, is framed is very important.  The American health care system has never failed me because I, my wife (when first married), or my father (during my growing-up years) have all had excellent jobs with even better fringe benefits, including comprehensive health insurance.

            A. An observation is in order, I suspect.  As mentioned above, no illness, injury, or condition was ever so extensive or devastating that I, or anyone else in my family, exhausted our health insurance benefits.  I would probably think twice about the “excellence” of my health insurance if I had an illness that far outstripped my family’s ability to cover what insurance did not.

            B. Another observation is in order.  The jobs that I, my wife, and my father have had have either been professional (practicing or teaching law) or management positions where the firm’s needs for employees with specialized skills justified the firm offering excellent fringe benefits, including great health insurance.

            C. Yet another observation is warranted.  Health insurance is always a substitute for wages.  This is well-documented and incontrovertible.  Rational people are usually willing to take a little less in take home pay if their health insurance is great.  They will demand more in wages if the insurance is mediocre.  Further, it’s a fairly standard phenomenon for a prospective employee (or a couple, if the person is married) to extensively analyze their prospective employer’s health insurance, more than any other fringe benefit to see if it will meet the employee’s health needs and risk tolerance.

            D. OK, so what?  It seems to me that the best way to “grow the pie” of access to quality health care is for the conditions to obtain in the national economy so that high paying, great benefits jobs are created, so that these access-newcomers can step into the health care system with their new found insurance.  I know that what we’re really discussing in this month-long conversation are those people who don’t have great (or good enough) jobs and therefore don’t have good health insurance.  What to do about the health care needs of these folks?  I get that.  I get that not everyone will have a high-paying, management type of job with a “Cadillac” level PPO plan.  Surely we’ll discuss options for these people in our final two posts.  But in the meantime, it seems to me that the best way to have the peace of mind that comes with comprehensive health insurance is to get those jobs that provide that type of comprehensive health insurance.  Grow the economy so that more people can find good jobs with good benefits.  Notice that my plan does not depend on the government starting a new program or expanding an existing one.

Conclusion

In this blog post, I’ve moved from a brief meditation on the Christian’s obligation to personally look after his fellow human being as an act of devotion to Christ his Lord.  I then moved to the tenuous position that Americans are put in if they assume that government-provided health care is a “claim” type of right against the government.  Though there are few barriers to Congress creating a mandatory, universal health care system in which Americans must participate, that is a different proposition that to say that there is a constitutional right to health care.  I then moved the camera to my situation and confessed that my experiences with the health care system are unlike many Americans.  I’ve always been in a position where neither I, nor to my knowledge, anyone else in my family, has ever had to worry about health care bills because our jobs have been so good, all things considered.  What I have had, I want for everyone else.  May our economy grow such that everyone who needs great health insurance can have great health insurance.

Inblog posts, I hope that we can discuss structural defects in the American health care system that impose burdens on less well-insured Americans.  I’m thinking here of a few things: (1) the sub-optimal care at times provided by the Medicaid program, (2) the “charge master” phenomenon of billing the uninsured prices for hospital-provided goods and services orders of magnitude more than those with insurance, (3) the aggressive collection practices of some hospitals (even some non-profit hospitals), and (4) the difficulty experienced to access reliable and effective bankruptcy proceedings for those with overwhelming medical debt.