Appealing to a Higher Court

            Although the Supreme Court has allowed the Affordable Health Care Act to stand, there are those who still contend that, like birth control and artificial insemination, the act is against the Natural Law, as developed primarily in the Christian tradition over two millennia.  Amherst legal scholar Hadley Arkes has been a prime advocate of this view in numerous articles, including  “Natural Rights Trumps Obamacare, Or Should” in the magazine First Things, December 2011.  As a card-carrying Jesuit fellow traveler, I couldn’t help trying my hand at a response.  For those of you interested, here’s what I had to say:

            Five hundred years before Christ, Heraclitus observed, “although the Logos is common to all, most men live as if each of them had a private intelligence of his own.” Heraclitus’s Logos, like the Dao or the Natural Law (mutatis mutandis), defines the principles which govern the universe, and from which humans stray at their peril. Hadley Arkes’s natural law challenge to America’s health care plan substitutes a private intelligence for well-defined principles of natural law, possibly to identify the author’s position with more universal concepts than a particular constitutional theory.

The challenge needs to be examined on several levels. At the highest, is there a reasoned basis for believing that natural law is incompatible with universal health care? Is there consensus among natural law authorities, or in common practice, for this belief? Finally, assuming no disqualifying argument against universal health care, is there evidence that such a system would be inferior to the prior one as regards its effect on the natural rights of Americans?

Arkes evidently perceives two ways in which mandated health care violates natural law. The first is that the law abrogates a specific natural right. Quoting a recent legal brief, Arkes maintains that “Imposing on people a contract they do not want would be quite as wrong as dissolving, without their consent, a contract they had knowingly made.” Oddly, the statement is itself entirely correct, but the implication drawn from it entirely wrong. As a citizen, I have multiple contracts imposed on me that I may or may not want: to pay taxes, to contribute to Social Security and Medicare, to serve my country if called in time of war, to support any children I may have helped conceive, and on and on. I may also have contracts I have knowingly made dissolved without my consent, including both unlawful contracts (e.g. murder for hire), contracts lawful but restricted (e.g. bigamous marriages), and contracts entirely lawful but overridden by the concerns of the state (e.g. property contracts abrogated by eminent domain).

Arkes’s second, more powerful objection is based on the possibility that mandated health care would impinge upon the fundamental right to life. Arkes makes this contention twice, first asserting, “The generous provision of care to the poor would come along with controls that could deny to ordinary people the medical care they would regard as necessary to the preservation of their own lives, perhaps even when they were willing to pay for that care themselves,” and again, “this scheme of national medical care is virtually bound to produce a scheme of rationing, as it has produced that rationing in Britain and Canada, denying medical care to people now entirely reliant on the government for their care. The serious question then is whether this denial to people of the means to preserve their own lives, with means quite legitimate, touches the ground of natural rights. 

I believe that it does.”

This position, though dramatically stated, totters on not one, but four cracked legs. First, it contends that these harms “could,” and more strongly are “virtually bound” to happen, offering in evidence only that they have allegedly come about in two other counties. This contention can be challenged in two ways. Empirically, there are more than thirty countries with universal health care, so experience in two is not proof of inevitability, or even likelihood. But there is also a rational objection. Actions that have a possible, or even highly likely, outcome may be entirely permissible if precautions can be taken to avoid the outcome, or if the action is the only apparent way to avoid a worse result. A surgery virtually bound to result in the death of a patient may still be ethical, even when the patient is physically unable to give consent, if it is deemed to be the patient’s only hope. A rescue effort likely to result in the death of the rescuer is still legitimate, even heroic, when the same action (plunging into a raging torrent, for example), would be suicidal if not for the intent of the rescuer.

Even if rationing were to evolve, it need not deny people “the means to preserve their own life.” A society may deny orthopedic or other corrective surgery for very elderly patients or others whose lives are minimally affected by their physical limitation, yet offer all available interventions to patients with life-threatening diseases.

Further, no system could leave people “entirely reliant on the government for their care,” unless it were combined with draconian regulations against travel that would themselves be against all contemporary standards of natural rights. This last point deserved further examination, particularly in light of the rationale for adopting universal health care.

            Here, to invert Anatole France’s quip that “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” we can say the law equally allows rich and poor to travel abroad for health care denied them at home. Even today, large numbers of Americans – estimates range as high as 1.3 million – seek medical care abroad. Some even travel to Canada, especially to the Shouldice Hospital for hernia care, as well as to Mexico, Thailand, and other countries. Estimates of global medical tourism run into the several millions.

While the wealthy – or even comfortable, since an international trip plus treatment may cost less than the same in a U.S. hospital – could seek whatever means of life preservation they desire, those now unable to afford medical care would be assured of the means to preserve life, at least to a greater extent than under the present system.

If there is no rational conflict between universal health care and natural law, does informed opinion favor that position? Apparently not. The Roman Catholic Church, for example, has consistently described universal health care as both a right of persons and a duty of governments. As Richard McBrien noted in the National Catholic Reporter (October 5, 2009), “The teaching that health care is a right rather than a privilege was articulated by Pope John XXIII in his encyclical, Pacem in Terris....The pope began that encyclical with a list of rights, the first set of which pertained to the right to life and a worthy standard of living. Included in these rights were the right to ‘food, clothing, shelter, medical care, rest and finally the necessary social services.’” More recently, Catholic News Service reported, “Pope Benedict XVI and other church leaders said it was the moral responsibility of nations to guarantee access to health care for all of their citizens, regardless of social and economic status or their ability to pay. Access to adequate medical attention, the pope said in a written message Nov. 18, was one of the ‘inalienable rights’ of man.” (November 18, 2010) The same view has been consistently held by the American hierarchy, as in recent testimony before Congress: “As national debate about a major Congressional health care bill continues, the U.S. bishops have called for ‘genuine’ health care reform that protects human life and provides comprehensive health care access. Bishop of Rockville Centre, New York William F. Murphy, writing a July 17 letter to Congress on behalf of the U.S. Conference of Catholic Bishops (USCCB), commented: ‘Genuine health care reform that protects the life and dignity of all is a moral imperative and a vital national obligation.’” (Catholic News Agency, July 22, 2009).

            This last item suggests a further place to seek common wisdom regarding natural law and health care. As implied by Bishop Murphy, natural law requires respect for human life from conception. We might therefore suppose that state opposition to abortion and to universal health care would go hand in hand. Yet the eleven European countries – all with overwhelming Catholic or Orthodox majorities –prohibiting abortion all provide universal health care, as do the four largest South American (and Catholic) countries prohibiting abortion.

            If the rational case against universal health care lacks substance, and the weight of opinion among Christian leaders and nations favors such care, can we examine empirically whether mandated health care in fact tends toward the preservation of natural rights?  

            If as Professor Arkes correctly notes, the ability to preserve life “with means quite legitimate” is a part of natural law, the current America health system is far worse than those of most developed countries at preserving that right. (A problem arises, of course, when “legitimate” is introduced into a discussion based on natural law. Certain means of preserving life, such as killing another to provide yourself with a lifesaving part of that person’s body, may be illegitimate. Many forms of legitimacy, however, are arbitrary decisions of governments or societies, and may have some, or no, basis in natural law. A Hindu, for example, may find killing a cow to provide life-saving human nourishment to be illegitimate, without in any way deriving this decision from natural law.)

            Not only is American life expectancy lower than in 19 of 23 European, North American, and Pacific countries, and newborn mortality levels and indices of child well-being equally low or lower, but we “lead” the rest of the civilized world in the number of people who die of curable illnesses before age 75, and trail in years of healthy life expectancy for those over 60. During this century, each of these countries, even financially beleaguered Greece, have reduced deaths from amenable causes (so-called “avoidable mortality”) at rates at least twice as fast as has the U.S. Journalist T.R. Reid observed in 2010 that “Government and academic studies reported that more than 20,000 Americans die in the prime of life each year from medical problems that could be treated, because they can’t afford to see a doctor.”  More than 100,000 avoidable deaths occur each year in America, from this and other causes.

            Given these facts, can we understand, if not agree, with Professor Arkes’s position? Several of his points offer a possible answer. Although the phrase “natural law” appears prominently at the beginning of his article, it is far from central to his case. The term itself appears only seven times in the text (as opposed to 24, for example, for “government” and 15 for “constitution”). He focuses primarily on Constitutional law, historical precedents and concern for “the vast enlargement of the reach and powers of the state.” Despite his title, he openly states that “the most serious argument against Obamacare is that it threatens to change the American regime in a grave way: that it sweeps past the constitutional restraints intended to ensure a federal government ‘limited’ in its ends, confined to certain ‘enumerated’ powers, and respecting a domain of local responsibilities that it has no need or rationale for displacing.” 



            These arguments are serious ones, and can and should stand on their own, rather than attempting to climb onto the shoulders of the natural law. But beneath a commitment to originalism and limited government is an unexamined premise with greater explanatory power.

In invoking the natural law Arkes speaks entirely of natural rights, and never mentions natural duties. However, in such sources as the Catholic Encyclopedia, natural law is identified with duties, rather than rights. (Not to deny that duties and rights are often obverse and reverse of the same principle.)  In Arkes’s rights-focused (dare we say libertarian?) discussion, an individual right to preserve life is paramount, but the duty to see that others’ lives are preserved is nowhere mentioned. This and the off-hand assertion of “a natural right not be coerced into buying things we have no wish to buy,” and fears of government power, all suggest that the individual’s right to make choices is the foundation of Arkes’s edifice.

It may be more than a linguistic anomaly that this places the natural law argument on the “pro-choice” side. For in espousing a radical (in the etymological if not the political sense) commitment to individual choice, Arkes aligns himself with one of the chief ailments of our age.  As David Bentley Hart observes in Atheist Delusions, “In even our gravest political and ethical debates—regarding economic policy, abortion, euthanasia, assisted suicide, censorship, genetic engineering, and so on—‘choice’ is a principle not only frequently invoked, by one side or both, but often seeming to exercise an almost mystical supremacy over all other concerns.”  It should not exercise such supremacy over health care for all Americans.