The Individual Mandate and the Common Good (Lorraine Cuddeback)

Last night, the Senate Republican majority failed in what was likely a last-ditch effort to repeal and replace the Affordable Care Act (ACA). After failing to gather support for either the Better Care and Reconciliation Act (BCRA) or a straight repeal of the ACA, the Senate considered a “skinny” repeal of the ACA that targeted three key provisions: the individual mandate, the employer mandate, and a set of taxes on medical devices.

Every attempt to repeal and replace the ACA has targeted the individual mandate, that is, the requirement that everyone purchase health insurance or pay a tax penalty. The mandate has from the beginning been one of the most criticized aspects of the ACA, and was the subject of an ultimately unsuccessful challenge to the law in the Supreme Court. Moreover, the potential repeal of the individual mandate is one of the most significant factors impacting the numbers coming from the Congressional Budget Office. Forbes speculates that 73 percent of the estimated 22 million people who would lose coverage as a result of the BCRA would actually do so by opting out of coverage with the removal of the individual mandate. Republicans argue that this means that repeal is less a matter of actively kicking people off of their health plans, and more one of allowing people to make a choice about whether they want to be covered or not. This approach emphasizes the importance of personal responsibility.

Yet, even if 16 million people would choose to go without insurance if the personal mandate is lifted, serious moral questions remain. Many people who “opt out” would likely be doing so because they lack the resources to comfortably afford insurance. Such “choices” made out of economic constraints are not “free” choices among goods, but rather the result of needing to select one out of several bad options. In other cases where lack of resources is not the issue, there is a question about the common good at stake. If one can afford insurance, but nonetheless opts out, is that a just action? At the heart of this issue is the relationship of personal responsibility to the common good.

Individual Mandate as Personal Responsibility

Going at least back to the presidency of George Bush, Sr., the individual mandate has played an essential role in the healthcare debate. And yet, in what may come as a surprise to contemporary conservatives unaware of this history, the individual mandate was initially a conservative suggestion.

In 1991, a group of economists wrote a paper titled “A Plan for ‘Responsible National Health Insurance’” (Health Affairs 10, 1 (1991): 5-25), in which they advocated for “mandatory basic coverage”:

In our scheme, every person would be required to obtain basic coverage, through either an individual or a family insurance plan. All basic plans would be required to cover specified health services; plans could, however, offer more generous benefits or supplemental polices. The maximum out-of-pocket expense (stop-loss) permitted would be geared to income, with more complete coverage required for lower-income people, to ensure that no one faced the risk of out-of-pocket expenses that were catastrophic, given their income. (10)

At the time, as Mark Pauly (first author on the article) detailed in a 2011 interview, the individual mandate was offered as a market-friendly alternative to the “specter of single-payer coverage.” In fact, one of the underlying assumptions of the original article shows just how market-driven their proposal was:

A vigorous, competitive market in insurance and in health care delivery is more likely to create an efficient and high-quality health care system than is one controlled by government. An improved market system, purged of open-ended subsidies, free riding, and cost shifting, is the most appropriate way to determine the allocation of resources to health care. A more efficient system would permit us to produce more real health benefits or other goods and services within our given resources. Placing the obligation to obtain insurance on the consumer would achieve universal coverage without distorting labor markets; it would encourage cost-conscious choices and a competitive market in which individuals (and employers on their behalf) have an economic interest in the selection of their insurance. (10, emphasis mine)

Repeatedly, the article refers to the economic consequences of not having enough people in the pools for insurance coverage. Healthcare is not simply a matter of individual choice, but operates as a market in which the entire national community participates. In the 1990s, even conservative economists recognized that when it comes to healthcare, we are all connected to one another. Participation in the healthcare market is not an option, but an essential part of operating as a political community.

This is not simply a descriptive statement about human fragility and mutual dependence, but also an expression of a moral sensibility, as well — in another section of the original article, the authors state “It would be more effective and humane for recipients and less costly for society if assistance came in the form of affordable insurance rather than payment for care when delivered in the late stages of illness” (8). Embedded in the language of cost-effectiveness is a sense of a shared common good, albeit one primarily expressed in terms of money rather than rights and responsibilities towards one another. This is the moral sentiment, however tenuous, that radically changed in the aftermath of the ACA.

Individual Mandate vs. Personal Responsibility

Flash forward to the debates about the ACA, and we can identify a shift in the moral perception of the individual mandate. The concept once designed as a levy against single-payer coverage is now seen by conservatives as a moral travesty. The (modest) moral language of cost-reduction has given way to a greater emphasis on autonomy and choice. The Heritage Foundation, which in 2003 promoted the individual mandate as an essential component of the “health care social contract”, by 2009 issued a statement calling the personal mandate “unprecedented” and “unconstitutional.” A concept designed to provide incentives for personal responsibility (or more precisely, disincentives against being irresponsible) is now seen as an affront to taking responsibility for health and wellness through personal choices.

Granted, some of the recent Republican proposals have contained a hidden embrace of the mandate. The Cruz amendment, for example, hoped to keep people contributing to the insurance pool by constructing bare minimum plans that don’t meet the current federal requirements for coverage of essential health provisions. The likely result of this, however, is still a rise in the premiums for more comprehensive coverage that “high-risk” people with preexisting and ongoing medical conditions will need.

The debate about the individual mandate today prioritizes autonomy over our sense of connection to the broader society. This emphasis runs counter to the principles of Catholic social teaching. In fact, when the ACA was originally passed, Ron Hamel and Fr. Thomas Nairn, OFM, wrote in “The Individual Mandate: A Rancorous Moral Matter,” an article for Health Progress, the journal for the Catholic Healthcare Association of the US, celebrating how the individual mandate aligns with elements of CST, citing the communal sharing of basic goods, human dignity, the common good, and distributive justice as supporting the mandate. While acknowledging that some critiques of the mandate could be made based on the principle of subsidiarity, Hamel and Nairn contend that “Subsidiarity acknowledged that various tasks of a society need to be taken up as close to the people involved as possible, but nevertheless at the level large enough to be effective. Again, the principle of subsidiarity properly understood does not necessarily lead to a rejection of the individual mandate” (emphasis mine). Supportive of the mandate, Hamel and Nairn conclude that:

The individual mandate, even though government imposed, can help foster and realize values that are deeply rooted in American culture and the Judeo-Christian tradition. The individual mandate may not be the perfect or the ideal instrument for achieving the goals of health care reform, but, nonetheless, viewed ethically, it seems to resonate with the best of our cultural and religious traditions and seems capable of achieving considerable good for all Americans and for American society.

The rhetoric of personal responsibility is only useful if we recognize that it means personal responsibility for contributing to the common good, not something isolated from the community that surrounds us. The individual mandate embodies that responsibility. It is more important to ensure that the mandate does not pose a burden to families rather than eliminate it altogether. So long as we continue to rely on market-driven healthcare (and there are many debates and criticisms to be had about how just or sustainable that framework is), we need to recognize that this is a “market” that affects all of us. More importantly, we need to recognize that whatever actions we take up as a part of our own personal responsibilities are still accountable to the common good.

Lorraine Cuddeback recently attained her Ph.D. in moral theology at the University of Notre Dame. Her research is in social ethics, particularly disability and theology, Catholic social teaching, and feminist ethics. Her dissertation is about ethics, practices, and theologies of inclusion for people with intellectual and developmental disabilities.