the Law, the Universe, and Everything 

Search

Concurring Opinions is a
general-interest legal blog
operated by Concurring
Opinions LLC, a Pennsylvania
Limited Liability Corporation.

lr_jkr9_12_08supremecourt.jpg

ad-logo5.jpg

Our Podcast

Subscribe to Law Talk

Law-Rev-Forum-2.jpg

law-rev-contents2.jpg

Law-Prof-Blog-Census.jpg

Categories

Accounting
Administrative Announcements
Administrative Law
Admiralty
Advertising
Agricultural Law
Anonymity
Antitrust
Architecture
Articles and Books
Bankruptcy
Behavioral Law and Economics
Bioethics
Blogging
Book Reviews
Capital Punishment
Civil Procedure
Civil Rights
Conferences
Constitutional Law
Consumer Protection Law
Contract Law & Beyond
Corporate Finance
Corporate Law
Criminal Law
Criminal Procedure
Culture
Current Events
Cyberlaw
DRM
Economic Analysis of Law
Education
Empirical Analysis of Law
Employment Law
Environmental Law
Estates and Trusts
Evidence Law
Family Law
Feminism and Gender
First Amendment
Food
Google & Search Engines
Health Law
History of Law
Humor
Immigration
Insurance Law
Intellectual Property
International & Comparative Law
Interviews
Jurisprudence
Law and Humanities
Law and Inequality
Law and Psychology
Law Practice
Law Professor Blogger Census
Law Rev (Boston College)
Law Rev (Boston University)
Law Rev (California)
Law Rev (Chicago)
Law Rev (Columbia)
Law Rev (Cornell)
Law Rev (Duke)
Law Rev (Emory)
Law Rev (Fordham)
Law Rev (Georgetown)
Law Rev (GW)
Law Rev (Harvard)
Law Rev (Illinois)
Law Rev (Indiana)
Law Rev (Iowa)
Law Rev (Michigan)
Law Rev (Minnesota)
Law Rev (Northwestern)
Law Rev (Notre Dame)
Law Rev (NYU)
Law Rev (Penn)
Law Rev (S Cal)
Law Rev (Stanford)
Law Rev (Texas)
Law Rev (UCLA)
Law Rev (Vanderbilt)
Law Rev (Virginia)
Law Rev (Wash U)
Law Rev (Wm & Mary)
Law Rev (Yale)
Law Rev Contents
Law Rev Forum
Law School
Law School (Hiring & Laterals)
Law School (Law Reviews)
Law School (Rankings)
Law School (Scholarship)
Law School (Teaching)
Law Student Discussions
Law Talk
Legal Ethics
Legal Theory
Media Law
Movies & Television
Philosophy of Social Science
Politics
Privacy
Privacy (Consumer Privacy)
Privacy (Electronic Surveillance)
Privacy (Gossip & Shaming)
Privacy (ID Theft)
Privacy (Law Enforcement)
Privacy (Medical)
Privacy (National Security)
Property Law
Race
Religion
Reparations
Science Fiction
Second Amendment
Securities
Social Network Websites
Sociology of Law
Supreme Court
Tax
Teaching
Technology
Tort Law
Web 2.0
Weird
Wiki
Wills, Trusts, and Estates

Archives

October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
November 2005
October 2005
August 2005
July 2005
June 2005
May 2005

 

« A Fellow of Infinite Jest? Platinum and Diamond Skull Sells for ₤50 Million | Main | Introducing Guest Blogger Timothy Zick »

September 03, 2007

The Libertarian Pincer Movement Against Universal Coverage

posted by Frank Pasquale

Ann Althouse is disturbed by John Edwards' proposal for a universal health care, which would require some preventive care. She says:

Why does he not even realize how bad that sounds? He's so warmed up about the generous benefits he's promising that he doesn't even hear the repressiveness in his own statements. I'm sure he won't be able to deliver on these promises. I'm just wondering about a person with so little sensitivity toward personal freedom.

Althouse's lament is part of a more general libertarian pincer movement to erode social solidarity. The first step is to construct a class of undeserving sick who have failed to live up to their "duty to be healthy." Those who care about a functioning safety net then try to respond with programs like Edwards'. These programs are then attacked as a terrible infringement of individual liberty.

I wonder if Althouse also opposes the Bush administration-supported West Virginia program that imposes all manner of paternalistic restrictions on Medicaid recipients? When I went to a conference on Medicaid in June, "personal responsibility" was the watchword of many Republicans there, including Newt Gingrich. Here's Newt:

[P]arents and the public-education system have failed to control childhood obesity, a rate that has tripled since 1980, according to the Centers for Disease Control. To reverse this, physical education should be required for every student in grades K through 12 five days a week. Students should be weighed, their body mass index calculated, and the results and relevant educational material sent home to parents. School lunches, breakfasts and vending machines should promote healthful foods, so that unhealthful alternatives are penalized or prohibited.

Coercion? Or just common sense?

UPDATE: I respond to some comments here.

Posted by Frank Pasquale at September 3, 2007 03:42 PM

Trackback Pings

TrackBack URL for this entry:
http://www.concurringopinions.com/movabletype/mt-tb.cgi/2411.

Comments

Of course, you don't have to send your kid to a public school, or feed them from a vending machine or a lunch line. On the other hand, Edwards' program would be mandatory for all Americans, with no opt-out option.

Of course, we could do away with all public schools and with medicaid.

Posted by: Rhymes With Right at September 3, 2007 04:40 PM


I suspect *one* part of the problem here is that Althouse relies on a rather attenuated if not unsophisticated conception of autonomy, one that has in fact held pride of place for some time now in the bioethical literature. For critiques of this conception that do not, at the same time, dispense with this important moral principle, please see, first, Carl E. Schneider, The Practice of Autonomy: Patients, Doctors, and Medical Decisions (New York: Oxford University Press, 1998), and then, Alfred I. Tauber, Patient Autonomy and the Ethics of Responsibility (Cambridge, MA: MIT Press, 2005).

[FWIW: I visit Ms. Althouse's blog for the photographs, which are typically first-rate, the other material rarely reaches such heights (and the comments are notoriously awful).]

Posted by: Patrick S. O'Donnell at September 3, 2007 04:59 PM


From the article:

"It requires that everybody be covered. It requires that everybody get preventive care," he told a crowd sitting in lawn chairs in front of the Cedar County Courthouse. "If you are going to be in the system, you can't choose not to go to the doctor for 20 years. You have to go in and be checked and make sure that you are OK."

I would interpret that as meaning you're still allowed to buy your own private medical insurance, in which case you're perfectly free to neglect preventive care. That is, if you can afford that private insurance. And if you're on the dole, wouldn't conservatives prefer that the government not waste its money on treating preventable illnesses?

Posted by: Scott Caplan at September 3, 2007 05:04 PM


"I wonder if Althouse also opposes the Bush administration-supported West Virginia program that imposes all manner of paternalistic restrictions on Medicaid recipients?"

There is a fundamental and self-apparent difference between Medicaid and universal health care: Medicaid is not universal -- it is welfare. It is those who don't benefit from it paying for those who do. So there is of course a basis -- perhaps a heartless one, but a basis nonetheless -- for attaching strings to Medicaid eligibility that do not carry over to bona fide universal health care (including Medicare).

Socialized medicine (including Medicare) is different from Medicaid: it is taxing people to fund a compulsory universal scheme, then saying that because the health care is "free" (!), the government can attach strings on the very people who (involuntarily) paid for the coverage in the first place.

So the government takes my money, and then demands that I conform to its (i.e., politicians' and bureaucrats') standards of "correct" lifestyle choices in order to get my money back. All in the name of establishing a "compassionate" and "enlightened" paradigm.

This is what I have previously dubbed "The Krugman Lie."

Posted by: KipEsquire at September 3, 2007 05:28 PM


Kip,
Given that people can buy supplemental insurance in Britain, and given the diversity of private insurance plans available to supplement public programs in countries like France and Germany, do you really think Edwards is planning to just nationalize the whole American system? Can't people supplement Medicare with Medigap plans and other policies?

As for Medicare & Medicaid: Is the deal really so 1-to-1 in Medicare? What about people who die before 65--they don't just get the money they put into it back. And if you have a condition while you're on Medicare that's a lot more expensive than mine, it's not like anyone says "wait a second--I don't want to subsidize him." No workable insurance system works like a dedicated HSA--and the latter can end up being a way to assure that the poor get close to no care at all.

Finally, Medicare also covers many disabled people, fitting more into the "welfare" paradigm you've articulated. see
http://www.ssa.gov/dibplan/dapproval4.htm

Finally: the U.S. government already massively subsidizes medical education and other parts of the health care infrastructure. I am just mystified by libertarian voices who think that if we somehow just got government out of the way, and cut taxes more, we'd somehow find a way to pay for all that.

Finally, some perspective from Woolhandler and Himmelstein:

"While national health insurance wouldn't cost Americans more, it would mean that taxes would pay a bigger share of health care costs and that private insurance and patients would pay a smaller share. Yet government now spends far more on health care-and national health insurance would require a smaller tax increase -than most Americans believe. The step from our current level of tax financing -59.8 percent-to Canada or Australia's 70 percent is less steep than the CMS figures on public spending imply. About $130 billion per year-the amount of the recent tax cuts-would get us from here to there."

from
http://www.pnhp.org/news/2002/july/paying_for_national_.php

Posted by: Frank at September 3, 2007 05:40 PM


Frank, I honestly don't understand your attack on me. You say "Althouse's lament is part of a more general libertarian pincer movement to erode social solidarity. The first step is to construct a class of undeserving sick who have failed to live up to their 'duty to be healthy.'" But it seems to me that it is Edwards who is trying to impose a duty to be healthy. It sounds as though you have to meet the conditions of going in for preventive care to be in the program. How could you enforce the requirement other than by disqualifying people who come in with something that could have been found earlier? I'm not the one recommending disqualification. Edwards is implying it, or is too short-sighted to see that it's implied by his proposal, as stated.

And I'm especially concerned about the requirement that we submit to screening for mental ailments. Why should we trust a candidate who comes up with such an idea? It's crazy. (He should be screened.)

Posted by: Ann Althouse at September 3, 2007 06:24 PM


Frank, I don't understand what you're trying to say in your post.

"Althouse's lament is part of a more general libertarian pincer movement to erode social solidarity."

The question is whether her criticism of Edwards's plan is valid. You haven't addressed that.

"Those who care about a functioning safety net then try to respond with programs like Edwards'"

"Care?" I'm sure they like to think they care, but if they really cared they wouldn't be supporting programs like Edwards's. Actually, when you read the last paragraph of your post, shouldn't you have said that "those who care. . . try to respond with programs like Newt's."
Anyway you still haven't addressed the mandatory aspect of coverage.

"I wonder if Althouse also opposes the Bush administration-supported West Virginia program that imposes all manner of paternalistic restrictions on Medicaid recipients."

You can wonder if you want to, but why would you want to? According to what you just wrote in an earlier paragraph, if she supports it she cares. If she doesn't support it then you'd have to say she's consistent. Either way you'd have an answer to what it seems you were trying to imply.

Posted by: AYY at September 3, 2007 06:25 PM


Ann,
I don't think of this as an attack on you. All I'm trying to do is to contextualize your post as part of a larger rhetorical effort to discredit efforts to insure the uninsured.

Every plan is going to have some component that someone dislikes. Does it really advance public debate to score points against one small corner of one candidate's plan without giving people a sense of a better alternative?

I think that anyone who criticizes a plan like Edwards's ought to advise readers of the plan that they prefer, and how that plan would deal with the problem of the 45 million uninsured. (see, e.g., http://lawprofessors.typepad.com/
healthlawprof_blog/2007/08/justice-oconnor.html

Posted by: Frank at September 3, 2007 06:39 PM


Good lord, what an odd way of viewing the suggestions (Ann's, not Frank's). I've said it before, but I will keep saying it: this country spends 95% of its health care dollars on acute care and 5% on preventive medicine and public health even though it is generally undisputed that the latter have a far greater effect on population health than the former.

If we are talking about a public subsidy of health care, a general proposal I am very much in favor of, we damn well better start by correcting the preposterous flow of health care dollars in this country. Moreover, it is precisely the libertarian predilections in American culture that Ann taps into that are in part responsible for the flow of dollars directed to acute care. As Callahan nicely pointed out in False Hopes, acute care generally deals with individual patients who need care promptly. This appeals to our individualist ethos, whereas the benefits of preventice care are more diffuse and are distal from the provision of care itself.

Far from being a reason to attack Edwards' plan, then, Ann's invocation of a libertarian ethos is actually part of the problem inasmuch as it is that kind of ethos which has contributed to the current health care state we are in, where the measures that would almost certainly improve health in the aggregate far more than any kind of acute care receive $1 for every $16 allocated to acute care.

Posted by: Daniel Goldberg at September 3, 2007 09:29 PM


Althouse's lament is part of a more general libertarian pincer movement to erode social solidarity.
Anyone who's a regular reader of Ann's blog will find the suggestion that she's part of a "libertarian pincer movement" faintly absurd, given her stated objections to libertarianism. Back to the drawing board, Frank...

Posted by: Simon at September 3, 2007 10:01 PM


Post a comment




Remember Me?

(you may use HTML tags for style)

Authors

Daniel J. Solove

Website
Understanding Privacy

Kaimipono Wenger

Website
SSRN Page

Dave Hoffman

Website
SSRN Page

Nate Oman

Website
SSRN Page

Frank Pasquale

Website
SSRN Page

Deven Desai

Website
SSRN Page

Michael O'Shea

Website
SSRN Page

Sarah Waldeck

Website
SSRN Page

Lawrence Cunningham

Website
SSRN Page

Danielle Citron

Website
SSRN Page

Jaya Ramji-Nogales

Website
SSRN Page


Guests

Robert Ahdieh
Neil H. Buchanan
Miriam Cherry
Susan Kuo
Jonathan Lipson
Paul Ohm
Geoffrey Rapp
Susan Scafidi
Howard Wasserman
Timothy Zick






ad-logo3.jpg

blawg100_winner2.jpg

Previous Guests

Michael Abramowicz
Michelle Adams
Robert Ahdieh
Michelle Anderson
Laura Appleman
Francesca Bignami
Jeremy Blumenthal
Bruce Boyden
Donald Braman
Al Brophy
Bill Burke-White
Scott Burris
Anupam Chander
Miriam Cherry
Jack Chin
Jennifer Collins
Allison Danner
Brannon Denning
Deven Desai
Mike Dimino
Christine Haight Farley
Kim Ferzan
Dan Filler
Amanda Frost
Timothy Glynn
Rachel Godsil
Eric Goldman
Craig Green
Jeffrey Harrison
Erica Hashimoto
Carissa Hessick
Laura Heymann
Christine Hurt
Darian Ibrahim
Dan Kahan
Sam Kamin
Heidi Kitrosser
Adam Kolber
Russell Korobkin
Anita S. Krishnakumar
Greg Lastowka
Sarah Lawsky
Erik Lillquist
Jeff Lipshaw
Joseph Liu
Solangel Maldonado
Jason Mazzone
William McGeveran
Salil Mehra
Carrie Menkel-Meadow
Max Minzner
Scott Moss
Eric Muller
Jaya Ramji-Nogales
Elizabeth Nowicki
Paul Ohm
Michael O'Shea
Rafael Pardo
Marcy Peek
Eduardo Peñalver
Neil RIchards
Lori Ringhand
Alice Ristroph
Paul Secunda
Jessica Silbey
Peter Smith
Charles Sullivan
Rick Swedloff
Steph Tai
Robert Tsai
Steve Vladeck
Sarah Waldeck
Melissa Waters
Alfred Yen
David Zaring
Timothy Zick
Jonathan Zittrain

Blogroll

Above the Law
ACS Blog
Althouse
Balkinization
Becker-Posner Blog
Beltway Blogroll
BlackProf
BoingBoing
Chicago Law Faculty Blog
Conglomerate
Convictions
CrimLaw
Crime & Federalism
CrimProf Blog
Crooked Timber
Discourse.net
Dorf on Law
Election Law
Emergent Chaos
Feminist Law Profs
43(B)log
Freakonomics Blog
Freedom to Tinker
Google Blogoscoped
How Appealing
Ideoblog
Info/Law
Instapundit.com
JD2B.com
Juris Novus
Jurisdynamics
Law and Letters
Legal Profession Blog
Legal Theory Blog
Legal Times Blog
Leiter Reports
Brian Leiter's Law School Reports
Lessig Blog
Madisonian
Mirror of Justice
National Security Advisors
Opinio Juris
Point of Law
Political Theory Daily Review
PrawfsBlawg
ProfessorBainbridge.com
Property Prof
Red Tape Chronicles
The Right Coast
Schneier on Security
SCOTUSBlog
Security Dilemmas
Sentencing Law and Policy
Simple Justice
Sivacracy.net
The Situationist
Susan Crawford
TalkLeft
Talking Points Memo
TaxProf Blog
Tech & Marketing Law
Truth on the Market
Volokh Conspiracy
WorkPlace Prof Blog
WSJ Law Blog
Wonkette
The Yin Blog

Pajamas Media BlogRoll Member