Someday, all Americans will have access to health care, just as all people in Germany and France and Japan and Sweden and every other advanced industrialized democracy do today. It may take a decade or two after the implementation of the Affordable Care Act in 2014 (if it survives the whims of Anthony Kennedy) to fill in the gaps the law leaves behind, or it may take decades beyond that. But it will surely happen eventually. And at some point after it does, we'll come to a consensus as a society that it was a collective moral failure that we allowed things to be otherwise for so long. In those other countries they came to that realization some time ago, and today they look at us and shake their heads in amazement that their American friends could tolerate and even defend such needless and widespread suffering in their land. But our own collective moral sensibilities still have a good way to go.
Over at the New Republic, Andrew Koppelman describes the striking parallels between the case challenging the ACA and a 1918 case in which the Court struck down restrictions on child labor. It's a good reminder that we've had these kinds of arguments before:
That's why the Supreme Court's invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared—in tones reminiscent of the Broccoli Objection to Obamacare—that if it upheld the law "all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed." Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be "permissible as against strong drink but not as against the product of ruined lives." The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor "are of themselves harmless." This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.
Of course, the American system wasn't destroyed when child labor was eventually outlawed, and if the Affordable Care Act is upheld, the government won't be passing laws mandating broccoli eating. Let's be honest here for a moment. The 99.999 percent of Americans who are not constitutional scholars don't really have strong feelings about the commerce clause. They hear the legal arguments in a case like this, and some of those arguments sound more persuasive than others, but mostly what they're interested in is the result. Back in 1918, there may have been widespread revulsion at the idea that 9-year-olds would be working 12-hour days in miserable factories, but that revulsion wasn't universal. There were upstanding members of society who were willing to defend the existing order and claim, with whatever arcane legal argument that came to hand, that it was utterly unconscionable and an affront to our founding documents for the government to step in and put a stop to child labor.
And today, there are upstanding Republicans, including somewhere between three and five of the members of the Supreme Court, who believe it is unconscionable for the government to try to get everyone health insurance. Just as the defenders of child labor would never have dreamed of putting their own little children to work in a factory, all those crying about the tyranny of the individual mandate already have their own insurance, and so will have their "freedom" infringed not a whit by the requirement. What they find so abhorrent, in truth, is the very idea of universal health security. What offends them so is the idea that everyone, even those who have proven their defective character by not being rich, could have full access to health care.
What we have here is a clash of perspectives. One says that getting help when you're sick or injured is a right that should belong to all, like an education. There are countries where there are no public schools, and if you can't afford the tuition you'll remain illiterate and bereft of any opportunity to improve your lot. But here in America as in most places, we don't demand payment at the schoolhouse door, because education is so essential to human flourishing that we believe it should be denied to no one. Everyone may not be able to go to the fanciest prep school, but everyone gets to go to school. The other perspective says that health care is completely a privilege of wealth. If you can afford it you can get it, and if you can't then that's too damn bad. And should the government try to make a basic level of health coverage a universal right then it must be fought with unimaginable fury and resourcefulness.
As I said, one day we will have universal coverage, though it may take a long time. Today, no one (well, almost no one) would defend the system of child labor we had a hundred years ago, and eventually, we'll all agree that a system that leaves 50 million Americans with no health coverage is a moral abomination that shames our nation. When we come to that consensus, we should not forget the villainy of those who fought so hard to keep that system in place.
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