The Corner

About the Mandate Overreach

From Randall Smith, a fellow at the Ethics and Culture at Notre Dame

Once you’ve decided to politicize health care decisions in this way, there’s no telling what “good” the unelected mid-level bureaucrats of some future administration might decide they want to foist off on everybody else when they take power.  Indeed, now that I’m president, I’ve had a whole slew of good ideas.  Regular exercise is good, so I’ve decided that all health care plans should cover, without co-pay, access to regular exercise classes.  I’ve decided that all health care plans should be required to cover sex-change surgery (it would be “discriminatory” if they didn’t, I’m told by a panel of high-level psychologists that I hand-picked to tell me so).  I’ve decided that all health care plans must cover abortions.  (No one can seriously think that this won’t be next in line in a second Obama term.)  I’ve decided that all health care plans must cover embryonic stem cell therapy (the health benefits are well-documented, and besides, who could be against anything that would help people with Parkinson’s or Alzheimers?)  I’ve decided that all health care plans must cover elective euthanasia.  (Everyone in Europe is doing it.  We’d look ridiculous to the cultured European elite if we didn’t make it easily accessible to our poor elderly.)  Once these matters become subject to government manipulation, they will be manipulated — endlessly.

And notice, these issues will be decided not by the elected members of the legislative branch; they will be decided by an unelected bureaucracy or, as is likely, adjudicated upon by an unelected judiciary.  How long before someone sues the government claiming that, since X coverage has been extended to some group, Y coverage must also be included as a matter of some other group’s “equal protection” rights under the Fourteenth Amendment?  Private insurers don’t typically bear the same political burdens of “equal protection” that the federal government, for good reasons, does.

So ask yourself: is the federal government really the place we want these decisions about what is “mandated” or “forbidden” to be made?  You might now, because you hold the levers of federal power now.  But how about in the future with some future president of the opposite party?  Do you really want to open up that Pandora’s Box?  Once you have a government with the power to stipulate “every insurance policy must cover X, Y, and Z,” you also have a government with the power to say that “insurance policies must never cover X, Y, and Z.”  The difference is only in the details.

So let’s be clear: these aren’t just “religious freedom” issues or even merely issues of the protection of “conscience.”  Those rights are certainly at risk in the current HHS mandates.  Indeed, how could they not be once fundamental health-care decisions have been federalized?  What’s at stake here, more centrally, is the whole structure of the federalist system envisioned by the Framers of the Constitution.  When my company holds the authority over health-care decisions, I have a certain kind of recourse: I can get on my company’s health-benefits committee, or I can seek employment elsewhere.  When my state government is the one exercising regulatory power, I have a certain kind of recourse (less than the first, but still some): I can talk to my local representative, go to my state capitol, or run for office myself.  Once the federal government exercises its regulatory power — especially through its inevitable 14th-Amendment “equal protection” jurisprudence — then I will have no recourse whatsoever.

Read more here.


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