It’s a Penalty! It’s a Tax! It’s Unprecedented!

I have been bemused–and occasionally amused–by all the posturing over the provision in the Affordable Care Act requiring people to purchase health insurance.

How dare they!!

If you listen to the right-wing blogs and talking heads, you’ll come away believing that such a mandate is unprecedented. The government has never required us to do something, or penalized us for failing to do something.It’s unAmerican to penalize inaction. That evil Obama  is introducing an entirely foreign element into American law. (The fact that Romney did exactly the same thing in Massachusetts is obviously different….)

Of course, this line of attack is entirely fanciful.

As a legal scholar recently noted, the very same week it upheld the ACA, the Supreme Court affirmed a law requiring sex offenders to register their whereabouts, employment and appearance with local authorities. If they fail to do so, the law in question imposes a penalty of ten years in prison–a bit more draconian than the ACA’s fine. The Court made it clear that this mandatory registration was not punishment for a crime –the individuals subject to the requirement have already paid their debt to society for those transgressions (a contrary construction would run afoul of the Ex Post Facto prohibition).

Courts upholding this particular type of mandate–and there have been several–have explicitly said that the only conduct being punished was the “inactivity” of failing to register.

There are many other examples–so many that a Professor at John Marshall Law School has actually written an essay on “The Incredible Ordinariness of Federal Penalties for Inactivity.”

As I have repeatedly noted, there is nothing wrong with faulting provisions of this particular approach to healthcare reform. What I find absolutely astonishing, however, are the  logical contortions opponents will go through in order to attack the legitimacy of any attempt to  extend access to healthcare. I have been absolutely stunned by opponents’ self-righteous denunciations of such efforts, and by their evident willingness to simply let the uninsured suffer and die.

A recent editorial in the Journal of the American Medical Association is worth quoting.

That editorial began “Physicians and hospitals have a moral duty to provide acute care and emergency care to those who need it.” Proceeding from that expressly moral premise, the editorial concluded that individuals “have an enforceable moral duty to buy sufficient health insurance to cover the costs of acute and emergency care…requiring individuals to buy health insurance is consistent with respect for  individual liberty because individuals have a duty to mitigate the burdens they impose on others.”

We don’t talk much about the morality of policy. We should.

Yesterday, every single House Republican voted to take away health coverage for young adults staying on their family plans, raise prescription drug prices for seniors, end protections for those with pre-existing conditions, reinstate lifetime insurance caps, scrap tax breaks for small businesses, raise the deficit, and take benefits away from 30 million Americans. Pundits reporting the vote generally noted that it was one of a series of such votes, and that it stood no chance of ultimate passage. They spent a lot of time analyzing the politics of the GOPs message and speculating on its electoral effect.

To the best of my knowledge, none of them pointed out how utterly immoral it was.