Healthcare in America: Principles and Problems

Introduction

First, I would like to thank Dr. Cochran for his excellent and edifying essay, “Healthcare in America: Diagnosis. Cure?”  There are many commendable observations and suggestions found in it.  I’m particularly struck by Dr. Cochran’s generous and conciliatory tone.  Throughout his essay, Dr. Cochran maintains a posture of what I will call firm civility.  At no time does he compromise his hard won and long considered positions, yet, he makes his case in a respectful and moderate tone.  In what is best about religiously-based discourse, Dr. Cochran writes with a genuine Christian meekness, and that is much appreciated. 

My plan in this initial follow-up essay is to do two things: I will discuss two of Dr. Cochran’s “fundamental Christian social principles”.  I will then discuss one practical problem with America’s healthcare system and a couple of ways that problem may be dealt with.

Fundamental Christian Social Principles

It’s helpful at this point to make a global or overreaching observation: all five of Cochran’s “fundamental Christian social principles” are interrelated.  That is, it’s practically impossible to argue that any one principle of human dignity, participation, justice, stewardship, and the common good can be pulled apart from any of the other principles.  Human dignity implicates justice, just as justice implicates stewardship, and etc.

That these principles are interconnected might be a good reason not to try to attack them.  And let me further attempt to be fair: Cochran himself said that he would have to further develop in subsequent essays the germs of ideas found in his brief descriptions/definitions.  I hope that he does. Nevertheless, “attack” them I shall, with a hope that I’m thought to be have been at least somewhat charitable.

In my reaction to Cochran’s fundamental Christian social Principles, I would ask Cochran to answer what I believe to be the most fundamental question of religion and politics: are there areas of our common politics that are not or should not be governed by religious, or even Christian principles?  That is, why is healthcare so special that it deserves to be analyzed through the prism of Christian thought?  Are there areas of legal or political concern that are off- limits to religious influence, analysis, or understanding?  If so, why?  

With that said, let me comment on just two of Cochran’s principles:

Human Dignity.  There is no doubt that each human being, by virtue of their creatureliness, has a worth that cannot be measured or even approximated.  Simply, each person bears the imago Dei, the image of God.  My theology can be derivative in that I can believe that because God created the first human, Adam, and because I, too, am human, I have received God’s ‘stamp’ and characteristics, just as Adam did.  Or my theology can be more personal.  I can believe that a loving, all-knowing, all-caring God, willed me into being (though human agency, of course) and “knit me together in my mother’s womb” (Psalm 139:19), and by making me, left me the imprint of Himself on my very being. 

It really doesn’t matter which of these two positions one takes.  God has infused each person, whether directly or tendentiously, with the yearning for and a capacity to love and the innate ability to reason, among other characteristics that first can be ascribed to God.  Each position gets one to the same place: because each person has the very characteristics of God Himself, each person deserves respect and appreciation for their humanness.  However, I am not sure that an appreciation of a person’s majestic humanness translates to a right to a certain quantum of healthcare that must be provided by the state.  It certainly means, at the very least, that I must affirmatively do nothing to mar that image borne by other human beings.  Traditionally, Christian thought has upheld the injunction against murder, first found in the Ten Commandments, as a practical manifestation that each person has God’s likeness and that likeness should not be destroyed.

However, if a person has a right to a certain amount, style, and quality of healthcare, then that means that the person can demand it from the government.  It also means that the government must provide that care.  If we agree with the description of rights found in my first essay, we then know that constitutional rights (in their best description) are those that are recognized by the framers of our Constitution as deriving from natural rights, those rights that one possesses merely by or because of one’s humanity.  We might even say that natural rights are those that one possesses because one bears the imago Dei.  Said a slightly different way, our constitutional rights are negative rights – those things that the government cannot do to you by virtue of your citizenship (or presence) in America.  Because we have a charter of negative rights, theoretically, at least, Americans have a maximum amount of freedom.  With that maximum amount of freedom comes a realization that the government’s role in any one person’s life is limited.  If our freedom is maximized, then that which any of us can demand or expect from the government is limited.  To me, this should nudge Americans of goodwill (whether Christian or not) away from thinking about an omni-competent government that provides everything that a person needs into a society where needs, including needs for healthcare, are provided by the pillars of civil society, including the church and other Christian-affiliated organizations.

Without belaboring the point too much, let me emphasize that such a positive right to total healthcare is not found in our Constitution.  Such a right will have to be inserted by an activist Supreme Court who sees the Due Process Clause of the Fourteenth Amendment as wide ranging in extremis.  Or, to more accurately track with our founders’ intent, such a right would have to go through the laborious process of amending the Constitution.  It is a process that is designed to fail, because it requires super-majorities in the House and Senate and the States to approve the amendment.  So, I think that we can make a simple and obvious conclusion: at no time did the framers contemplate that the government (through Congress’s Article I legislative powers) provide intimate, personal care type of benefits to citizens.  This is notwithstanding ardent nationalists like Alexander Hamilton strenuously arguing for a Constitution of big, capacious powers.  If, as a Nation we want to recognize a new right, and we are faithful to the intent of our founding fathers, it is best for us to get our act together and properly amend the Constitution.

Justice.  As I mentioned in my previous essay, just because Americans don’t have a (current) right to healthcare, claimable against the government, doesn’t mean that Congress can’t create a comprehensive healthcare program in which all Americans must participate.  This could be accomplished through Congress exercising its Article I constitutional powers to tax and spend.  The question of whether such a program would be desirable is an entirely different inquiry.  The desirability question has been one of the biggest post-hoc impediments to universal acceptance of the Affordable Care Act, which established a form of a universal healthcare program for the uninsured.  In short, there are many practical problems with implementing the ACA.  However, the desirability question or the practical problems created by the ACA are more questions of prudence and do not philosophically or theologically go to the heart of whether justice requires that every American receive a certain amount and quality of healthcare. 

It seems to me the most fundamental problem with framing a right to healthcare in terms of justice is that most “regular” Americans think of justice as something of merit rather than that of a grant.  In other words, most Americans consider justice as a reciprocal, binary relationship in which each person (in the words of the old saw about justice) “renders” his fellow man’s “due,” and is likewise “rendered” his “due” by his companion.  In this vision, justice is a matter of even relationships.  This is best seen in the criminal context.  If I commit a crime, I am due – I deserve punishment.  In essence, the punishment is what I’ve earned because I committed that crime.  And equally important, once I complete that punishment, my standing in the community – my relationships – theoretically should be restored.  [I realize that this last statement is oftentimes more aspirational than real.  Criminals who complete prison sentences or other punishments face tangible challenges in returning to restored status in the community.  But theoretically the proposition holds – once you’ve done your time, you’ve paid your debt to society, and you are then “all square”.]  If I’m an employer, it would be unjust for me to stiff my employee his wages.  He’s earned them; therefore, he gets them.  And on and on we may multiply the examples.

Americans have a much harder time thinking about justice in the distributive sense – in which goods and services are parceled out from those who currently enjoy those goods and services to those who currently do not have them.  This is in no small part because the practical implementation of a system of distributive justice usually means raising taxes on those who have means in order to purchase benefits for those who don’t have means. [Witness, for example, the special Medicare payroll tax that was included in the Affordable Care Act to pay for some of the Act’s many initiatives.]  And raising taxes usually implicates matters of earning and desert – for taxpayers at least.  To be frank, many people resent having their taxes raised for government services that do not tangibly and directly benefit them.  [Witness, for example, in the city and state in which I live there is a great reticence to raise property taxes in order to improve the public schools.  People who do not have children in the public schools seem very reluctant to raise the taxes needed to improve schools because their children have graduated or attend private schools.] 

And this is where any advocate of healthcare reform’s argument (including mine and Cochran’s) for healthcare as a pillar of the common good becomes vitally important.  Cochran’s definition of common goods as those which are a part of, foster, or enhance a communitarian social ethic is fine in principle.  Where it is not fine, it seems to me, is the positing of a communitarian ethic without proof that such an ethic does exist or has a realistic prospect of existing in the near future.  Let me be plain: I think we live in a society that is as individualistic as Cochran suspects and not nearly as communitarian as Cochran wants.  It is therefore incumbent on Cochran, as one who wants to change the status quo, to demonstrate the path to transforming America into a society communitarian enough so that satisfactory healthcare for all Americans can be secured.  I agree with Cochran: if there ever comes a time that America pivots toward a communitarian society, then it can be rightly argued that healthcare for all is just as much of a common good as clean air and clean water are.  Until then, it doesn’t seem to accomplish much to say that healthcare is a common good.  For as a matter of living in the political community, traditional Americans seem to be unenthused about paying for their fellows’ healthcare needs (many of which are based on the person’s choices).

What About the Problems? 

I’m not blind to many Americans desperate for healthcare or a way to pay for it.  So, let me pivot back to my first essay.  From the Christian’s perspective, the responsibility for providing care for those who need it is upon Christians and the Church.  I suspect that many Christians experience a disconnect with their ability to remedy the problem of healthcare access and payment and the problem’s far-reaching scope.  That is, Christians (or at least Christians who are committed to doing something about the Nation’s healthcare crisis) are overwhelmed by: (a) Christians who are indifferent to their neighbors’ plight or (b) the government who has the power to affect the problem but neither the political capital, philosophical bearing, nor will to make a change.  In other words, many Christians are paralyzed and self-prevented from taking any actions in favor of their neighbors’ needs because they think: “This is not my job.”

It seems to me that Cochran has a foundational problem – a problem – a realization (?) that American society is not Christian enough, or at least not receptive enough at this point to his fundamental pillars (justice, human dignity, access, etc.), that adequate healthcare for all can be secured.  If I’m right about this realization, then there are two ways to respond.  One is to throw up one’s hands in surrender and resign oneself to the system never changing.  The second is to slowly, surely, and methodically attack the besetting problems of our healthcare system.  I choose the second response.  And in that spirit, I would like to identify one of those problems.

There is a gross injustice involved with the uninsured paying full retail prices based on hosptials’ chargemasters, while insured patients have their deeply-discounted bills paid for by a third party (the insurer).  A “chargemaster” is a hospital’s master spreadsheet of prices it charges for every good and service it provides.  The hospital’s charges are compared (in the spreadsheet) with the prices it receives from insurers with which it contracts for those same goods and services.  Because of the negotiated, contractual relationship insurers have with hospitals (and because insurers bring a certain volume of patients who will use the hospital’s services), insurers always pay hospitals significantly less than the “full” chargemaster price for a good or service.  Thus, many full retail prices on a hospital’s chargemaster are orders of magnitude higher than the most generous insurance reimbursement for the same good or service. 

Now, don’t get me wrong.  I like (nay, love) my health insurance.  I love the care it has facilitated for me and my family.  I especially love the financial shield with which it protects my family.  Despite having used the healthcare system at many points in my life, no bill has ever even remotely come close to devastating mine or my family’s finances, because we always have had excellent health insurance.  [For more on this, see my first essay.]  It is therefore flummoxing, perverse, and disturbing to me in the extreme that patients who are least able to pay the top charges from hospitals and other health providers are charged full-freight. 

Steven Brill, the founder of CourtTV, brought light to this obscenity in his widely-acclaimed April 2013 long-form article in Time Magazine entitled “Bitter Pill: Why Medical Bills Are Killing Us”.  Brill’s piece is the most important work in popular health policy in the past several years, and I heartily encourage every person who is concerned about our healthcare system to read it.  I have assigned it in my Health Law class for the past several years.  Brill gave several examples of uninsured patients who were charged a hospital’s complete price for the goods and services it provided, while insured patients had much lower bills paid by their insurance companies (and these insured patients were only responsible for the cost sharing obligations, like co-payments and deductibles, found in their arrangements with the insurers).  Brill highlighted the absurdity of hospitals using the un- or underinsured to cross-subsidize the hospital’s bottom line.  To be plain: hospitals charge full- freight to the un- and underinsured attempting to balance the hospital’s books or pad its operating profit.  Here’s what’s absurd: the un- and underinsured are the least able to pay the hospital’s top charges.  If these people had the means to pay the hospital’s complete charges, they would have done the rational thing and bought health insurance before they got sick to protect them from such high bills.

What can be done about this?  How about Congress passing a bill that says the following: no hospital will charge an uninsured person more than any particular insurer pays the hospital.  In other words, this bill would eliminate the scandal of a hospital charging a patient geometrically more than the next closest insurer pays.  The bill does not eliminate the uninsured paying for the goods and services for which they contract.  The “any particular insurer” can be Medicare, Medicaid, a commercial insurer with a lot of clout in the hospital’s market (like Blue Cross).  In the end, this bill would give uninsured patients something roughly analogous to a “most favored nations” right that insurers sometimes have.  (In a most favored nations clause, an insurer demands that it be charged no more than the lowest-charged insurer for a good or service).

Of course, Congress would have to pass this bill, and the President would have to sign it.  Whether Congress would pass, and the President would sign any proposed bill, are vast unknowns in proffering any new public policy.  And if that’s a criticism that’s leveled against my idea, I will gladly acknowledge and accept it.  What we can’t do is nothing.  We can’t not propose these ideas, regardless of their realistic chance of succeeding.  We can’t resign ourselves to the status quo where the uninsured are left without the care that they need.

Because my space is limited, let me mention just briefly mention one other item that would greatly benefit uninsured hospital patients charged full chargemaster prices.  We can hope and pray for a groundswell of judicial decisions favorably applying the contractual doctrine of “unconscionability” to exorbitant medical bills.  Unconscionability is one of the traditional common law defenses to the making of a contract.  It has “procedural” (how the contract is made) and “substantive” (the terms of the contract) elements.  You can see how both elements would apply to high hospital bills.  The patient (or family member) is “forced” to sign an authorization for treatment whereby the patient (or responsible party) promises to pay for the treatment the patient receives in the hospital.  On the front end, the patient or family member has no idea how much the services will cost, because prices aren’t posted and no one, including the treating doctor(s) or hospital has a good idea all of what the patient will need.  The substantive element involves the high prices themselves.  Usually, this doctrine hasn’t been successful for patients (or families) trying to spring themselves from outrageously high medical bills.  Let us hope and pray for just the right welter of cases that would allow this doctrine to be applied to uninsured patients.  Further, let us hope and pray that these cases will work just results for the patients and the hospitals involved.

Conclusion

I could discuss so much more.  I could discuss recent initiatives to force non-profit hospitals to provide more charity care, or I could discuss what can be done about medically “induced” bankruptcies.  I could discuss the disaster visited upon some American families by sky high cost sharing on the insurance “marketplaces” or exchanges, established by the Affordable Care Act, and how such cost sharing has caused some families to rethink the desirability of purchasing ACA-mandated insurance.  Suffice it to say, though, that right now there are many causes why Americans don’t have access to the quantum and quality of healthcare that they need.  What is called for is a sober appreciation of where we stand as a Nation in providing access to our most vulnerable.  What is also called for is a dual realization.  The first realization is (as I mentioned in my first essay) that as the national economy grows, good jobs with good benefits multiply.  Let’s work on growing the economy.  The second realization is this: as we work toward a version of community in which everyone has all that they need, let us continue to “block and tackle” the tangible healthcare-related problems that we have before us.  They are big problems!  It will not be easy to change from a chargemaster basis of figuring patients’ bills to something that is just for both patient and hospital.  It will certainly not be easy to introduce unconscionability in a medical-litigation system that seems resistant to it.  It will take a welter of good litigants with just the right facts and sympathetic judges, juries, and appellate judges.  Those things take a lot of time.  But…they are ways to treat the problems that are actually in front of us.  And we must do that if we are to accomplish anything.