In “Justice and Fairness: Mandating Universal Participation,” Paul Menzel grounds his endorsement of government-assured universal access to basic health care in a ideal of “just sharing” between fellow citizens. At the same time, Menzel calls unfair the current arrangement that shifts the costs of unpaid emergency care provided to “those who cannot afford to pay” onto “patients who can pay, almost all of whom are insured.” According to the figures cited by Menzel, such cost-shifting raises average family premiums by roughly $1,000 per year, and amounts to “unfair free-riding.”

There is some dissonance between these two planks of Menzel’s overall view. For if shifting the costs associated with unpaid emergency care simply involves having those who can pay (in the form of higher premiums) pick up the tab for those who cannot, why shouldn’t we count this as an instance of precisely the sort of fair sharing between citizens that Menzel endorses? Although his essay seems to suggest that he counts all such cost-shifting as unfair and in need of attention, perhaps Menzel wishes to make only the more modest claim that unfairness occurs only when those who receive unpaid care at emergency rooms are like the “young singles” who can afford insurance but forgo it because they see it as a bad financial bet. In these cases, the costs of one person’s unwise gamble are borne by her fellow citizens in the form of higher premiums.

But even in these cases we may have reason to think that an ideal of just social sharing would permit and perhaps even mandate shifting costs of care provided to the voluntarily uninsured. Let me note two reasons in particular for this.

First, and as Menzel acknowledges, the source of the shifted expenses is care provided by hospitals which are required by law to treat the acute health needs of anyone who presents in the emergency room. Yet as T. R. Reid points out in The Healing of America,

For the vast majority of sick people, the emergency room is not an option. Beyond that, you can’t go down to the emergency room for the physical exam or the blood test or the breast palpitation that could head off some disease before it threatens your life. You can’t go to the ER to refill the prescription for the pills required to keep you alive. (Reid: 30-31)

In contrast, the basic health care to which Menzel wants all to have access would surely include the preventive services that emergency rooms do not. But according to a recent literature review in the New England Journal of Medicine, “Although some preventive measures do save money, the vast majority reviewed in the health economics literature do not.” Even more recently, the nonpartisan Congressional Budget Office reported that “the evidence suggests that for most preventive services, expanded utilization leads to higher, not lower, medical spending overall.” So it could turn out that it is less expensive to provide a restricted range of free emergency care even to those who make bad gambles than it is to fund, again via higher premiums, their expensive preventive care.

One might object here that if what we cared about most was others’ health, we would prioritize preventive care so as to reduce the likelihood of another’s winding up in the ER. But the argument of Menzel’s that I’ve been discussing seems concerned solely with the costs that are shifted from some onto others. It is thus unclear why a principle of social sharing enjoins us to pick up the costs associated with preventive services but not the costs associated with ER visits.

The second reason for thinking that a just sharing principle would permit shifting the costs of emergency care has to do with the typical attitude toward contribution held by proponents of universal health insurance. Whereas Menzel states that his critique of free-riders is based in the precept that “no one should get to ride the system without contributing to its upkeep,” most proponents of universal health insurance would not criticize those who would benefit without being in a position to contribute to its financing. Perhaps this attitude can be explained by a principle that requires contributions only if opportunities to contribute are readily available and not too burdensome. But then what do we say about a 25 year-old college graduate who adopts an itinerant lifestyle, living off the generosity of her friends, while pursuing what many know to be a hopeless career as an artist? Although she does not in fact have enough money to buy insurance, she could perhaps acquire it if she decided to “get a real job.” Is she contributing her fair share to the universal insurance scheme? If not, should her coverage be cancelled or her subsidies lessened?

An approach that answers “no” to that last question might put universal health insurance in the same category as universal public education: you are entitled to it regardless of whether you end up contributing to its financing. In that case, the point of mandating insurance coverage might have less to do with guarding against free-riders than it would with ensuring that there are enough funds in the health system to protect and promote the health of all. And this is indeed one of the rationales cited by Menzel for the requirement that those who can afford it buy basic (and not merely catastrophic) insurance.

The analogy with universal education makes all the more salient the justification for universal health insurance Menzel associates with equality of opportunity. Here he follows the pioneering work of philosopher Norman Daniels in seeking to ground social justice claims to health care in what seems to be a squarely American ideal. But there is reason to doubt that this is in fact a winning strategy.

Daniels’ own inspiration for the equality of opportunity approach was John Rawls’s theory of justice. But that theory provides uneven ground for the extension Daniels proposed. Rawls’s equal opportunity principle is deliberately designed to redress only those inequalities of opportunity that are socially caused, such as inequalities in access to higher education that are the result of the impact of man-made economic arrangements on family income. Rawls therefore appears reluctant to endorse the claim, which is forwarded by Daniels, that all departures from full health that are nobody’s fault but nature’s are nevertheless prima facie unjust or unfair. Rawls’s stance here comports with a familiar strand in common morality that associates injustice with strong and assignable responsibilities for redressing it, and which assigns to one much stronger responsibilities for redressing disadvantages one had a hand in causing than to redress disadvantages caused by natural bad luck.

Like Daniels, Menzel adopts an expansive interpretation of equal opportunity that views naturally caused departures from full health as opportunity-limiting and thus prime facie unjust. Yet Menzel faces a second tension connected to the fact that he seeks a foundation in the ideas currently present “in U.S. moral and political culture.” For example, Menzel explicitly rejects the suggestion that equality of opportunity demands the universal provision of more than merely “basic” care. Why? Because “in a society committed to only modest measures of income redistribution generally, collective action will be out of balance if it guarantees everyone access to care above this line.” But then it seems utterly arbitrary to accommodate an American skepticism of “redistribution generally” while at the same time relying on an expansive interpretation of equality of opportunity that would likely be judged as overreaching from that same American perspective.

***

I am grateful to Paul Menzel for kicking off the discussion about justice and fairness in health reform by offering arguments to help orient our woefully inadequate national debate about the moral bases for reform. In the end, I share his confidence that there is a cogent rationale to be found in both common morality and U.S. political culture in favor of a government guarantee of affordable access to adequate health insurance. Although I have spent this post noting points on which I disagree with Menzel’s analysis, I hope the forgoing discussion proves as useful to moving the debate forward as his original essay.

(I thank Rob Streiffer for helpful comments on an earlier draft of this post.)

As Americans, we value a health care system where people are treated fairly. We expect that if we work hard and pay our taxes, we’ll have access to that most basic human right — getting care when we need it. But for millions of people in this country who work hard and pay their fair share of taxes, that’s not the reality.

Many immigrants who lawfully entered the United States are working at low-wage jobs without health insurance. They struggle, as generations of immigrants to the United States did, to get by each day, to pay the rent and put food on the table. And they are often forced to go without the health care they need because they cannot pay a doctor.

Imagine what it would be like to wait five years to get a cancer screening. Think about what you might do if you had a sick child but could not afford to see a doctor. Or imagine having diabetes and waiting five years to get regular treatment. This is unacceptable.

Today in America, legal immigrants who qualify for Medicaid services are unfairly denied access to the program for five years even though they pay taxes like everyone else. If we value fairness as a society, we must provide children and adults with access to essential, preventive care that keeps people healthy.

Why? When we prevent legal residents who diligently pay taxes from accessing routine medical care, it leads to an inefficient, costly and wasteful system of treating patients who are forced to seek care in an emergency room. It’s an expensive and ineffective way to treat conditions that require ongoing management like diabetes, heart disease or even cancer.

Letting legal immigrants pay into the health care system and get access to the care they need will bring down health care costs for the entire nation. It will allow for true access to health care for everyone who needs it and save money for our health care system in the long-run. Taxpaying legal immigrants deserve timely access to essential medical care.

If our core values as a nation are the concepts of fairness and justice, we must reflect that in the reforms of our health care system. It’s time to do what’s right and end the wait for health care.

Deeana Jang, JD is the Policy Director of the Asian & Pacific Islander American Health Forum.  As head of the D.C. office, Deeana Jang leads APIAHF’s policy work which includes improving access to health coverage, improving quality of care including linguistically and culturally competent health care services, promoting a diverse health care workforce, improving data on Asian American, Native Hawaiian and Pacific Islander health, and increasing investment in community-driven health strategies.

What, if anything, is there to recommend current health reform efforts to an advocate of universal, single-payer coverage? Assume, for the moment, that you support the adoption of universal, single-payer coverage in the United States. Let us say that you believe that everyone has a right to a decent and equitable minimum of health care, and that we as a society have a moral duty to ensure that everyone has financial and other access to such services. Under these circumstances, to what extent, if at all, can you reasonably support the current major congressional efforts to reform health coverage, and at what point if at all – and why – ought one to withdraw support?

Single Payer

Single-payer advocates in the U.S., such as Physicians for a National Health Plan, to take just one example, argue that present health reform efforts ought not even to be considered “reform.” Steffie Woolhandler of PNHP, for example, testified at a hearing at the President’s Council on Bioethics in 2008 that most of the health reform proposals being floated during the 2008 elections constituted “placebo” reform. For PNHP, the issue is that we’ve got nearly 50 million Americans who are uninsured, and who disproportionately suffer and die because they’re uninsured, in this country. Yet others get far more care than they need, and in fact more care than can do them any good. Coverage is not stable for most Americans. Private individuals and companies profit off the illness of others. As a result, we spend far more on health care than any other developed nation, yet fail to profit from it sufficiently, and in fact do much worse in many basic measures of public health than most other wealthy nations. Dr. Woolhandler believes that all necessary and effective health care should be free for everyone who needs it, and that it should be paid for via a nonprofit, national health plan.

Single-payer health care can look different depending on its foundational principles and how it’s instantiated. PNHP, for example, advocates universal access to comprehensive, publicly funded health care, free of additional charge to the public, provided by one’s own choice of providers, with policies set through democratic means. Many of its goals are similar to the goals of Canada’s Medicare program, which are public administration, comprehensiveness, universality, portability, and accessibility. PNHP, focusing on its American audience, pays particular attention to emphasizing free choice of private providers – a feature which, in this land that otherwise emphasizes choice, most insured Americans don’t currently enjoy through their coverage.

Incongruous Values

If you believe that everyone ought to have access to health care, that everyone will benefit by having universal access, and that we have a duty to ensure such access by stewarding dollars in the most effective and efficient means possible, then single payer looks like a pretty reasonable way to go. Indeed, it – or, perhaps, another form of universal coverage, such as one that uses a heavily-regulated system of nonprofit insurers who set provider payment rates through all-payer negotiation and who accordingly also do not restrict their beneficiaries’ choices of providers – would be just about the only reasonable way to go. As Joseph White and others have detailed, we have little evidence that the private market has improved health care costs and delivery in this country in recent decades.

But, if you do not assume everyone has an equal right to health care, regardless of ability to pay, and if you give less priority to the role of social solidarity, and perhaps also regard health care primarily as a consumer good, then single payer can start to look rather problematic. This is where we find ourselves in this country, where a distinct subsection of the population believes that justice, or at least distributive justice, in the case of health care among other items, entails allowing each person to keep the fruits of his or her own labor and accomplishments, without redistribution of the wealth.

In the United States, the values that we tend to prize are not ones that would at first glance favor a single-payer, Canadian-style system, but rather something far more like what we’re presently seeing going through Congress – an at-times incongruous amalgam of conflicting values and ends. Distributive justice in health care in the United States is a curious notion. On the one hand, most would agree in principle that health care should be equally available to all, and that we should strive to make it so. We do provide a substantial amount of care through public means or charity, and most of our coverage is tax-subsidized or -advantaged. Yet few of us have guaranteed coverage, and if we go without, the public often considers this to be our own fault. The substantial role of the government in the provision, financing and regulation of coverage tends to be obscure to most casual observers. Additionally, most of us obtain our health insurance through work, which appeals to our notion, whether real or fictional, of equality of opportunity and meritocracy in action. According to these notions, those of us who have coverage through employment do so by dint of hard work, intelligence, perseverance or other traits, and many of those who lack it do so because of a failure of effort, will, or other issue.

This becomes clearer through an examination of polls asking the public about health coverage. A recent Gallup poll, for example, found that 61% of Americans believed that individuals, rather than the government, should be primarily responsible for ensuring that they and their families have health coverage. And while a plurality or majority of Americans, when polled, support national, tax-financed health insurance, the number drops substantially – to about 40% – when asked whether their support would continue if this entailed that all Americans would get their coverage from a single government plan.

These incongruous values and beliefs pose a problem in implementing any health coverage system with a relatively homogeneous set of underlying values. We can’t simply decide that a given form of coverage is abstractly best suited to accomplish certain policy and ethical goals, and then implement it accordingly. Rather, like Daniel Callahan noted in a somewhat different context, we need also to look to the structure and values of the society in which we’re proposing that such a change come about. What we presently do, and what we ultimately decide to do with respect to health reform, as the late Senator Kennedy observed, says much about us as a society. We can continue on our present path, or we can choose to more clearly opt for one set of values over another.

Values in Major Current Coverage Reform Proposals

Current health reform efforts in Congress – or at least the ones getting all the publicity – prioritize many if not most of the same goals we presently further through our health coverage system. We all know what’s going on in Congress right now. All the health coverage reform bills under serious consideration now in Congress build and expand on our present, fragmented, and largely private but substantially publicly funded health coverage system. They would require everyone to obtain coverage, largely through the private market, give subsidies to lower- and middle-income Americans, and expand Medicaid. While a public plan option for Americans who don’t have coverage through work appeared dead as of August, chances are looking slightly – _slightly_ – better for its passage, though it’s still likely that it won’t make it in any final bill that might be enacted.

Under any of these proposals, justice in both of the senses I outlined earlier will continue to be only partially served: while more people will have access to coverage, in part through redistribution of the wealth, many others will not due to inadequate subsidies in a market that will continue to be private and for-profit. Social responsibility will exist via copious tax subsidies and public program expansions, but the labyrinthine nature of the system will continue to obscure the effect this could otherwise have on fostering solidarity, instead allowing many to continue to believe, whether correctly or incorrectly, that coverage is provided for the most part via one’s own efforts and financing. Lastly, the treatment of health care as a commodity from which to profit will continue with little if any abatement.

So to what extent, if at all, could a pragmatic single-payer advocate support the major features of the primary congressional bills under consideration, as making sufficient improvement, however flawed, to the present system while also laying at least some groundwork, if not a foundation, on which to ultimately achieve their goals?

Obama and the Democrats who wrote the major House and Senate bills deliberately chose to keep the current system more-or-less intact. They feared that, if they attempted wholesale change, Americans who presently have coverage – the majority – would oppose them and kill reform altogether. It was a pragmatic move, as many have observed. But almost no matter how one defines what it means to have an adequately functioning health coverage system, the one thing nearly everyone, on any side of the political spectrum, can agree on is that our present system isn’t working. If the reform fails to make certain key changes or additions to the system, particularly regarding benefit plan and capital investment regulation, provider payment reform, and security and affordability of coverage, then a tremendous opportunity will have been lost.

All the major bills under consideration include a mandate that individuals obtain health insurance, or else pay a penalty. Additionally, all of them except the Senate Finance bill also contain some form of mandate that employers provide coverage for their employees. While the House bill penalties have some teeth, the Senate penalties for failing to obtain coverage for oneself or provide coverage for one’s employees are minimal in comparison to the price of insurance. In exchange, they require insurers to guarantee issue and renewability, to institute modified community rating, and to set minimum benefit standards for the individual and small group markets. They also provide subsidies for people buying coverage on the nongroup market to ensure that coverage costs for them don’t exceed a certain percentage of their gross income, say between 2 and 12%, depending on the bill.

Now, these mandates could be quite reasonable if, for example, health insurance plans were tightly regulated in the benefits they offered, if plans jointly negotiated provider payments, and if prices were kept within the legitimate means of all Americans, whether through subsidies or otherwise. After all, in the absence of universal, government-provided coverage, we would need some way of ensuring that everyone obtains coverage, thereby spreading the risk most broadly and, ideally, helping to avoid financial disaster for those who incur substantial medical costs. But the proposed subsidies are pretty meager for middle-income Americans. The expectations regarding the maximum appropriate percentage of income for individuals to pay for health coverage are not reasonable, and they don’t include all out-of-pocket expenses. Administration of the credits will not be simple, and will require Americans seeking them to also seek and undergo eligibility determinations. All-payer negotiations aren’t under consideration. And the ability of risk-spreading mechanisms to accomplish what they’d need to do is questionable at best. If you advocate universal, single-payer health coverage, and believe that, as a pragmatic minimum, coverage must be genuinely affordable, cover most reasonable and necessary medical expenses without substantial out-of-pocket expense, and must provide relatively uniform and stable access for everyone, then these provisions simply don’t do the job.

The Medicaid expansion poses other issues. On the one hand, the proposed expansion eliminates eligibility categories and protects the lowest-income Americans from the heavy out-of-pocket expenses they’d otherwise incur if they were instead forced into the private market for coverage. Both make sense, and deserve support, particularly from supporters of universal coverage of nearly any form. However, nothing will be done to ensure adequate provider payment. Given that the Medicaid expansions will ultimately cost states substantially more money, because the population covered will expand dramatically in most states, this practically guarantees that providers will continue to be poorly reimbursed in relation to other plans, and hence likely reduce access for Medicaid beneficiaries. The disparate access it will likely engender would be difficult for even the most pragmatic and compromising single payer advocate to swallow.

Then there’s the public plan. Not only did the Senate Finance committee not include a public plan option in their bill, but the White House went to some lengths over the summer to indicate that, while it supports a public plan option, it doesn’t consider it to be an essential part of any legislation that might ultimately pass. If you’re a single-payer advocate, then a robust public plan option, one with cost controls and that’s available to a wide range of Americans, is essential. If the public option were successful in providing decent, stable and affordable coverage, it could provide a basis on which ultimately to expand. This, of course, is precisely what single-payer opponents fear, and why they’ve vociferously blocked such an option. Then again, this is what was originally said about Medicare, and it’s been nearly 45 years now without such a transformation. Nevertheless, a public option won’t likely make it into any bill that’s ultimately passed, even if only Democrats are on board, except perhaps in a very attenuated form.

So where does this leave our pragmatic single-payer advocate? Community and solidarity are little to be found in any of the bills under consideration. While they do reform some particularly ugly features of our present health coverage system – and this is a good thing – they largely retain the fragmentary nature of our system, and give Americans little reason to feel jointly invested in it. While they improve the ability of many, particularly lower-income, Americans to obtain coverage, they hardly guarantee health security. People can still lose their coverage in any number of ways, and they can still go broke paying for medical care. Perhaps a very, very pragmatic advocate of universal, single-payer coverage could hold his or her nose and support at least the Senate HELP bill or two of the three House bills. But these bills run far astray from the principles such an advocate holds dear.

So often the political debate in America revolves around two seemingly conflicting values: solidarity and subsidiarity.  William Sage touched on the former.  Opponents of health care reform often talk about the latter.  But it is the intersection of these two values that matters most to American politics, and nowhere more so than in the health care debate.

Subsidiarity found its first articulation in Catholic social teaching.  Basically it’s the investment of authority at the lowest level of an institutional hierarchy possible, essentially relegating centralized authority to a secondary or subsidiary role.  In other words, the group closest to whatever task or problem should tackle that problem first, and only when they’re not able to should a higher authority step in.  In social terms, this might break down something like this: first, individuals are responsible for their own social welfare, then families, then communities, then local governments, then state governments, and finally the federal government.

In many ways, subsidiarity flies in the face of the more universalist notion of solidarity.  Subsidiarity requires that small groups and individuals tackle problems, while solidarity demands that we all band together.

Nevertheless, if we’ve learned anything from the health care debate, it’s that for any meaningful reform to take place, we need to find ways to make competing ideas work together.  More people need to be covered for less money.  Somehow more government involvement in the health care industry also has to lead also to less of a financial burden on federal and state budgets.

The nature of health insurance is one of cost-sharing.  Lots of healthy people buy into a larger cost-pool in an act of voluntary, if unintentional, solidarity.  Insurers, at least in theory, compete against one another for customers, the competition leading to a decentralized system of coverage and care.

The American health care system, however, has instead erected a status quo which relies entirely on employment for health coverage.  Coupled with a ban on interstate sale of insurance, this has led to much smaller cost-sharing pools and very little actual competition, with one insurer often dominating entire cities or regions.  The sale of insurance is bound to each individual state and fifty different sets of rules and regulations govern insurance sales across the country.   Consumers of health care are almost always bound to their employer’s choice for health coverage – and worse, should they lose their job, find themselves suddenly without any insurance at all.  Essentially, the American system has eschewed both solidarity and subsidiarity, in favor of an ad hoc system found nowhere else in the industrialized world.  In the end, this has led to skyrocketing costs.

Beyond cost-control, solidarity is the driving force behind health care reform.  The argument that no modern, industrialized nation should be without universal coverage is compelling.  But other Western nations have found ways to take this principle of solidarity, and achieve it through far more decentralized means than Canadian-style single payer, or the expensive socialized medicine of the UK.  The Dutch have achieved universal coverage entirely through fierce competition between private insurers, and the Germans use a system of exchanges that allow German workers to move from job to job without losing insurance.  The Swiss, who have made an art of subsidiarity, have achieved universal coverage through competing non-profit insurance plans.

The problem with American politics is that so often our leaders view bipartisanship as a path to the worst of all possible outcomes – the uninspiring middle-road wherein nobody is happy and little is achieved.  What many European models have shown us is that competing values can actually be used to achieve effective compromise.  Perhaps conservative means can lead to progressive ends, or vice versa.  In the health care debate, competition and subsidiarity are the best tools to create quality, affordable health care for the most people, and with the right implementation they can be used to achieve universal coverage.  In this way subsidiarity, rather than a competing value, becomes a complimentary one, and we find our solidarity through competition and individual choice.  Universal coverage can be achieved from the bottom up rather than from the top down.

What could be more American than that?

The health reform debate, like so many debates in ethics and policy related to health care, tends to assume that the representative “health care professional” is a physician.  For many months, American have heard how the various reform proposals would affect physician’s autonomy, practice, income, terms of employment, and so on.  No one would argue that the interests of physicians are not integral to this debate.

But let’s look at the numbers.  According to recent data from the American Medical Association, there are 921,904 physicians in the United States.  According to recent data from the Bureau of Labor Statistics, there are 2,505,000 registered nurses.

These millions of nurses have opinions on health reform. As a profession, they’re for it. Strongly for it.  The American Nurses Association takes the position that health care is a human right, and that the failure of a society to provide basic care to its citizens also fails nurses in their professional role. The ANA argues that a public option is the option that is most likely to support the professional integrity of nurses, as shifting the system’s focus toward access to prevention, chronic disease management, and primary care will do a better job of deploying one of the system’s limited resources: nurses themselves.

There is evidence that the current health care system’s well-documented incentives, rewarding quantity rather than quality, are particularly hard on nurses, who are responsible for hands-on care and so spend significant time with patients and families. Research on the problem of moral distress in health care – those situations in which a health care professional perceives that structural conditions are preventing the professional from acting in patients’ best interests or are forcing the professional to act against patients’ interests – suggests a connection between nurses’ professional integrity and how nurses are deployed.  According to one recent study comparing physicians’ and nurses’ perspectives on the care of dying patients in the ICU, 45% of nurses surveyed told investigators that they had quit, or considered quitting, a job due to moral distress.

There is a chronic shortage of nurses in the US.  If the current health care system’s incentives and the outcomes it produces are putting such pressure on nurses’ professional integrity that nurses consider leaving jobs – or the profession itself – a system oriented toward those interventions that require the highest nurse-to-patient ratios will not be sustainable on the basis of workforce as well as cost.

Nancy Berlinger is Deputy Director and a Research Scholar at The Hastings Center and teaches health care ethics in the Nursing Management, Policy, and Leadership graduate program at Yale School of Nursing.