At the heart of the case for medical coverage for all isn’t the public’s health; it’s private tragedy.  Serious illness plunges people into a realm of Dickensian choice.  Some forgo life-prolonging treatment to preserve life savings for loved ones.  Others lose their homes or go bankrupt.  Insurance shields families against these scenarios.  From a population-wide perspective, its health benefits are modest; social and economic influences on health matter more.  But abandoning the sick to biology’s random cruelty violates a widely-shared sense of decency.  Caring, as an affirmation of our common humanity, inspires the quest for universal coverage.  Clinical efficacy matters, but standing by each other when bad things happen counts for more.

So it’s beyond peculiar that in the legal and political battles over the Affordable Care Act, the language of caring seems to have all but disappeared.  In the legal struggle to save the Act, liberals pressed a punitive meme – the uninsured as freeloaders (“free-riders,” in economics argot) who bilk the system for needed care, refusing to pay in advance by ponying up for coverage.  This meme is more the stuff of Ayn Rand than the politics of compassion – it’s of a piece with her division of society into “moochers” and productive citizens sapped by socialist impositions.

The free-rider story was meant to do doctrinal work – to guard the ACA from Commerce-Clause attack by casting the individual mandate as regulation of economic activity (obtaining medical care) rather than a requirement that people engage in an activity (buying insurance).  Since we all use health care, the story went, the mandate merely governs how we pay, putting freeloading off-limits.

It was a good-enough argument for judges inclined toward a broad view of the Commerce power.  Justice Ginsburg embraced it on behalf of the U.S. Supreme Court’s four liberals.  Justice Kennedy tried it on at oral argument, remarking that the uninsured “are in the market in the sense that they’re creating a risk that the market must account for.”  Had Kennedy kept to this view, he’d have been the Court’s decisive fifth vote for the constitutionality of the individual mandate under the Commerce Clause: requiring people to buy coverage regulates the risk (of health care use) that they create.

The Trouble With The Free-Rider Claim

But the free-rider meme was flat wrong as a characterization of the cash flows that the mandate mobilizes.  As the Court’s conservative dissenters (including Kennedy) pointed out, the mandate brings billions of dollars into health insurers’ coffers – perhaps $350 billion over ten years, to cross-subsidize care for the sick.  Sure, some who choose not to buy insurance free-ride when they become ill, but mandatory coverage functions, in the main, as a tax on the healthy to care for sick.  This, of course, is the rationale for the mandate, as an adjunct to guaranteed-issue rules, community rating bands, and other regulations that will make private insurance broadly affordable.

This flaw in the free-rider claim probably cost liberals Justice Kennedy as he came to realize that the mandate did much more than bill the uninsured for their medical risk.  Kennedy ended up as the 5th vote for a Tea-Party vision of the Commerce clause that dangerously limits America’s ability to cope with national problems.  He joined an opinion that deconstructed the freeloader meme, in furtherance of a radical attack on federal power to soften the market’s cruelest outcomes.

More than that, the Court’s conservative opinions (one by the Chief Justice and the other co-signed by Justices Scalia, Thomas, Alito, and Kennedy) leverage progressives’ reliance on a finger-pointing meme to cast the right as guardian against statist overreach.  It’s an Atlas Shrugged moment: the makers say no to the “moochers” (Ayn Rand’s term for those who take what others create).  The “problem” targeted by the ACA, as the conservatives frame it, isn’t the abandonment of anxious people in dire need; it’s that the “best health care is beyond the reach” of many.  Framed this way, the ACA indulges the “moochers”: since when is the “best” of anything within reach of the vast majority?

In the conservatives’ co-signed dissent, compassion doesn’t even make a cameo.  It’s “the survival of health insurance companies,” not the sick, that’s at risk – endangered by guaranteed-issue and other ACA requirements, sans the mandate.  This threat, the conservatives insist, demands a finding of non-severability – judicial eradication of the entire ACA.  Honoring Congress’s decision to put coverage within reach for more than 30 million (and allowing the political process to address insurers’ concerns) would be “hostile” to “the safety and welfare of the Nation and the Nation’s freedom.”

Atlas may have shrugged, but Chief Justice Roberts flinched, by failing to join the dissenters’ take-down of the ACA.  He won right-wing enmity by combining with the Court’s liberals to rescue the mandate by recasting it.  The penalty became a “tax” – a “shared responsibility payment” meant to “influence conduct” – and thus, “nothing new.”

Roberts’ act of statecraft (as most liberals saw it) or cowardice (from a Tea-Party perspective) put the ACA at political ground-zero.  “Obamacare” has eclipsed abortion, gay sex, and “war on religion” as the Right’s main electoral irritant.

Some campaign-season objections have been disingenuous at best – most famously, Vice Presidential candidate Paul Ryan’s claim that the ACA slashes $716 billion from Medicare to pay for “Obamacare.” (Ryan’s proposed budget cuts Medicare by the same amount.)  Conservative governors have scored populist points by claiming they can’t afford Medicaid expansion – even though it’s 100 percent paid-for by the feds for the first several years and 90 percent thereafter.  And the subsidies necessary to extend coverage to millions via both Medicaid and insurance markets have been condemned as profligacy, though the one-time increase in federal outlays that they’ll require pales in comparison to long-term growth in health spending.

Rebutting John Galt

These criticisms veil conservatives’ real objection to universal coverage – that it takes from the makers and delivers to the “moochers.”  “I swear by my life and my love of it,” John Galt announces in Atlas Shrugged, “that I will never live for the sake of another man, nor ask another man to live for mine.”  Advocates of health care for all – in the legal battle just past and in the political realm – have failed to respond to this argument’s primal force.  The free-rider proposition they pressed in the courts isn’t merely wrong as a matter of microeconomics; it’s at odds with the moral case for covering everyone.  This case rests on compassion, not the allegation that the uninsured exploit the rest of us.

If America’s new commitment to covering everyone is to endure, the language of mutual caring must return to the heart of our national conversation about medical care.  For sure, there’s much else to talk about, including the need to strike balances between rescue, palliation, prevention, and public needs beyond the health sphere.  But protectors of coverage for all will need to rebut John Galt.  They’ll need to celebrate the truths that we live our lives in part for the sake of others, that fate can turn mindlessly cruel, and that standing with the unfortunate when this happens elevates us all.

The need to do so will stay with us long after the 2012 campaign fades from memory.  States’ threats to say “no” to Medicaid expansion, pressure to skimp on the ACA’s subsidies for purchase of private insurance as medical costs soar, and proposals to cap Medicare spending via vouchers that don’t keep pace with prices for private coverage will challenge America’s commitment to decent health care for all.

The not-so-secret hope of some of the ACA’s critics is that rising costs will undo this commitment.  Painful choices about how to limit health spending loom ahead.  But regard for our shared humanity requires that we make these choices without turning our backs toward the least lucky among us.