How to Defend Resistance to the Health Insurance Mandate

For decades, the U.S. has seen the number of uninsured as a national disgrace. We've wrung our policy hands together to address the problem, entirely ineffectively.

But in the context of resistance to the Patient Protection and Affordable Care Act, Judges Hudson and Vinson, and the health insurance mandate resisters, have turned the issue of not being insured on its head. For them the ethical issue is their right to choose not to be insured, not society's obligation to ensure that all citizens have access to decent health care.

Conflict over the mandate rests on Isaiah Berlin's distinction (in his 1958 essay "Two Concepts of Liberty") between negative and positive liberty, defined as follows in the Stanford Encyclopedia of Philosophy:

Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one's life and realize one's fundamental purposes. While negative liberty is usually attributed to individual agents, positive liberty is sometimes attributed to collectivities, or to individuals considered primarily as members of given collectivities.

The health reform law promotes positive liberty - the possibility of pursuing our "fundamental objectives" through good health. The mandate resisters are asserting negative liberty - the right to make their own choices.

Both forms of liberty are fundamental goods. But in large part the two "sides" are talking (or, to be more accurate, shouting) past each other.

I strongly support the Patient Protection and Affordable Care Act. It's far from perfect, but it's the best we could accomplish. But like the mandate resisters and most other human beings, I don't like to be told what to do.

The problem with my insisting on my right to be uninsured is that if I or my uninsured family incur a major expense, unless I pay the bill myself, you'll pay it for me by paying more for your own insurance and more in tax.

In other words, my liberty is your coercion.

Proposals that individuals who refuse insurance should sign a pledge not to make claims on health care paid for by others are ridiculous. When my child develops a treatable but otherwise fatal cancer, and I say - "I've come to my senses - I repent my foolish decision - please help my innocent child!" - society won't, and shouldn't, say "tough luck."

Here's what a responsible mandate resister should propose:

"I have considered the options and conclude that I do not want to purchase health insurance. I realize that I may incur health care costs in the future. I intend to pay out of my own resources, but to ensure that I do not impose my costs on others, I am putting $XXX into escrow to cover the inevitable uncertainties."

The escrow amount should be large enough to pay for, say, the tenth percentile of costs incurred by uninsured people. A poor mandate resister could perhaps be required to pay a pro-rated sum into escrow. Wily insurers would probably figure out ways to make money by providing stop loss coverage for the voluntary refusers of health insurance, just as bail bondsmen make money by putting up bail payment.

Simply insisting on the right to be uninsured is an unethical stance. It recognizes my right to negative liberty, but does so at your expense. Requiring me to put a sum into escrow allows me to follow my own drummer, but protects you from having to bear the consequences.