This post is a part of our Bioethics in the News series
By Leonard Fleck, PhD
Republicans have not coalesced around any comprehensive proposal to replace the Affordable Care Act (though one is now on the table and intensely disputed). This has been named the American Health Care Act. At this writing (March 10) two congressional committees have approved a bill endorsed by Paul Ryan. It is expected to go to the full House this week where it will likely receive a much rockier reception from a number of very conservative Republicans who have derided the bill as “Obamacare Lite.”
For purposes of this commentary I will put aside internal Republican bickering. My goal is to call attention to the most serious ethical deficiencies in the bill as it stands now. I confess that Obamacare Lite does not sound too ethically problematic. Many Democrats would support some reform of the Affordable Care Act. A more accurate moniker (in my judgment) would be “Obamacare Stingy.” That comes closer to capturing the serious injustices inherent in the American Health Care Act (AHCA).
Anyone familiar with my published work knows I am a strong advocate for the view that health care costs need to be constrained, and this needs to be done justly and for the sake of justice in the overall allocation of health care resources. Further, I have argued that those who are medically least well off and capable of significant benefit from access to effective costly health care services have strong just claims to have those needs met. But this is precisely what the AHCA does not do.
Instead, the AHCA eliminates two taxes that Obamacare imposed on the wealthy to pay for the subsidies needed by the poorer uninsured to gain access to insurance. To be precise, the top 1% of income earners in the U.S. (those who earn more than $774,000 in a year) would receive a tax cut of $33,000 while the top 0.1% of earners would get a tax cut of $197,000. In order to reduce the burden on the federal treasury the new subsidies under the AHCA would be given as tax credits and reduced significantly from those provided under Obamacare.* Further, the tax credits would be age-related, not income-related. A 25-year-old would get a tax credit of $2,000 while a 60-year-old would get a tax credit of $4,000. If that 60-year-old earned less than $20,000 under Obamacare, he would have received $9,900 in subsidies for health insurance. The average 60-year-old will have 3.5 times more health care expenses than the 25-year-old. Under the AHCA insurance companies could charge the 60-year-old five times what they charged the 25-year-old, unlike Obamacare which limited that difference to a factor of three. The cost of insurance for that 60-year-old (the silver plan) would be about $18,000 under the AHCA, which would be essentially unaffordable. Instead of the notorious Alaskan “bridge to nowhere,” we would have “subsidies to nowhere.” This is where the most objectionable ethics issues lie: the creation of massive pseudo benefits that provide political cover for members of Congress but no health care coverage for patients with substantial health needs.
We must also mention that Medicaid funding would be reduced to the states, apparently through a per capita funding mechanism. Over a period of years, the share of Medicaid funding from the federal government would be reduced and the financial responsibility for “adjusting” would be left to state legislatures. The same might be true for high-risk pools for the uninsurable. Again, individuals faced with reduced subsidies would be forced to “freely choose” health plans with very high deductibles, high co-pays, and restricted benefits. This is “fig leaf” insurance, sufficient for political modesty, but insufficient for even modest health care coverage.
The common denominator among these items is reduced federal spending and the shifting of responsibility for making painful cost control (rationing) decisions to states, hospitals, physicians, and individuals. Congress thereby spares itself a Palinesque death panel fulmination. The reason this works is that there are numerous mechanisms for doing rationing invisibly, the most common of which is rationing by ability to pay.** The target for these efforts will be primarily those who are medically and financially among the least well off (not to mention politically powerless), such as our marginally employed 60-year-old above.
If individuals “freely choose” to not purchase health insurance (because it is unaffordable), or “freely deny themselves” needed care (because of high deductibles or co-payments), then responsibility for any bad outcomes (premature death) is widely dispersed among “irresponsible” individuals and effectively rendered invisible to prying media eyes. This is the logic embedded in Representative Jason Chaffetz’s (R-Utah) comment that people should “invest in their own health care instead of getting that new iPhone.” One individual responded that their $117,000 broken ankle was worth 234 iPhones.
A 2012 Families USA study concluded that 26,100 individuals between the ages of 25 and 64 died prematurely in 2010 as a consequence of being uninsured. Of course, the death certificates themselves would not have listed “lack of insurance” as the cause of death. These individuals would have died of their (untreated or undertreated) cancer or heart disease or diabetes, all natural causes, certainly unfortunate, but nothing that would capture any media headlines. These are patients who would have “refused” their life-prolonging $100,000 targeted cancer therapies or their $250,000 left ventricular assist device for their late-stage heart failure. That is what makes these outcomes politically invisible. Patients, apologists for invisible rationing will argue, made the choice to refuse these $100,000 cancer drugs “freely,” which is “better” (for whom?) than mandating and subsidizing their purchase of health insurance. Consequently, Congress and the President are shielded from charges of heartless rationing by a thick political “veil of (willful) ignorance.”
The ethical reality, however, is that this is politically-assisted suicide. If federal funding to the 31 states that have expanded Medicaid to 138% of the poverty level is reduced, and if state legislatures in those states are unwilling to raise taxes to support that former expanded funding, and if taxpayers fail to rise up in revolt and demand higher taxes for compassionate reasons, and if rural hospitals are forced to close because of the size of their uninsured patient base, and if anonymous patients die for lack of timely care and ability to pay, then who should be responsible for “assisting” those deaths?
Judge Neil Gorsuch has made it clear that he is profoundly ethically and legally opposed to physician-assisted suicide. He should be questioned closely at his hearing whether he is equally opposed to the politically-assisted suicides now in the process of being legalized by Republican legislation aimed at replacing the Affordable Care Act. Or will he plead that it is unreasonable to demand that he see what is in reality “invisible”?
Finally, President Trump has committed himself to supporting “universal access” to health insurance. In his tweets he should make clear that such access would be restricted to paytients, who alone seem to have the requisite visibility.
* Lest any of us who are securely in the middle class feel ethically superior to the rich beneficiaries of this tax giveaway, we should be reminded that we were the beneficiaries of $270 billion in tax subsidies in 2016, which reflects the value of the taxes we did not pay on our own health insurance provided by our employers.
** Invisible rationing is intrinsically unjust. The most central element of our understanding of just policies and practices is that they are public, visible, transparent, and available for criticism, most especially by those most directly affected. John Rawls, the philosopher, emphasizes this point in his book, A Theory of Justice. I have argued at length for that same point in the health care context in my book, Just Caring: Health Care Rationing and Democratic Deliberation (Oxford University Press, 2009), chapter 3.
Leonard Fleck, PhD, is a Professor in the Center for Ethics and Humanities in the Life Sciences in the College of Human Medicine and the Department of Philosophy at Michigan State University.
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