Shorter Republican Health Care Policy

Death panels are fine, as long as employers control them.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

34 thoughts on “Shorter Republican Health Care Policy”

  1. Something’s wrong under the hood at the WaPo; the link you use doesn’t include any of the post’s text; if you go back to the main blog, you only get part of the post’s text (thanks to those click-desperate nitwits at the WaPo who’d rather show a few more ad impressions to a population of irritated readers than show fewer ad impressions to a larger population of readers who aren’t irritated); clicking on the post title or on “continue reading” don’t work.

    The print-formatted version of the post does load the full text (I assume it’s the full text). Shame the formatting looks terrible.

  2. OK, now that I’ve read the post, I’m actually shocked. The key text is this:

    “The Respect the Rights of Conscience Act doesn’t mention any medical procedure. It doesn’t mention anything specifically. It treats Christian Scientists like Catholics, and Muslims just like Methodists,” Blunt says. “The principle is you cannot tell people they have to do things that violate their faith beliefs. It’s as simple as that.”

    For the last week or two that this issue has been under discussion, Obama-supporting smartasses like me have been making comments about how if you follow Republican logic an employer who happens to be a sincere Christian Scientist should be free to offer health insurance that refuses to pay for blood transfusions, or indeed for any care other than prayer. I knew that Blunt’s proposed legislation went beyond, say, Rubio’s – Rubio’s proposed legislation is restricted to contraception, because apparently religion really does give your boss a special right to control what you do with your ladyparts, but of course has nothing to say about other medical issues. Blunt’s proposed legislation appeared to mean that if your boss worshiped Bozo The Clown your health plan might consist solely of cream pies to the face. But I never expected Blunt himself to say that. Frankly, I’m gobsmacked, as if struck with a cream pie to the face.

    1. Frankly, I’m gobsmacked,

      May I suggest godsmacked?

      These are the same people that opposed recombinant DNA 30 years ago. And stem cell research today.
      What would the world look like if they had successful blocked recombinant DNA in 1976?

      …the world would be without the Human Genome Project, without the identification of 1,500 disease genes, and without DNA fingerprinting. The U.S. would also be $16 billion poorer in research and investments, $35 billion poorer in revenue, and lacking some 200,000 jobs. Plus 325 million people would not benefit from over 130 drug, including vaccines for influenza and hepatitis B.

      That’s from Christopher Scott and Thomas Maeder in the Acumen Journal of Sciences back in 2003!
      So do the appropriate multiplication…
      And then consider what will be lost if the Christian Taliban is allowed to shutter stem cell research again.

      This is my number one reason for supporting Mr. Obama.
      It looms so large in my calculus…
      I don’t need other reasons.
      Although plenty of other reasons do exist.

    2. Still having trouble with confusing “refusing to pay for”, and “refusing to let”, I see… Do you really think that my employer is forbiding me to do anything he doesn’t explicity subsidize?

      Yes, employers should be permitted to offer anything from gold plated plans that cover every elective procedure under the sun, to joke plans that only pay for cream pies to the face, and everything in between. Not because employers should be able to prevent you from getting any medical treatment besides a cream pie… Because goverment should not be ordering employers to offer only compensation packages the government likes.

      1. Joke plans like that are a means of enriching the companies providing them at the taxpayer’s expense. Joke plans get the tax advantage just like real plans. Add in the potential for kickbacks to HR reps choosing the plans, and you can imagine it won’t benefit the worker.

      2. Brett,
        This proposal, and yours, make our already deeply problematic system of taxpayer-subsidized employer-provided healthcare completely unworkable. I hope that you will recognize this and join me in calling for a single-payer system.

        PS I still haven’t heard how it comes about that you spent a year demanding extraordinary and redundant documentation of Obama’s birth when there was never any reason to question it in the first place, but you defend Mitt Romney’s extraordinary reticence and far-less-than-ordinary disclosure of his financial history when the revelation of his possessing a post-amnesty Swiss Bank Account raises obvious questions that would likely be addressed if he were to live up to the normal level of disclosure.

        1. Warren, you’re rather tedious about this. My position all along was that I regarded it as unlikely Obama wasn’t a natural born citizen, but that, in as much as the requirement was in the Constitution, phony “standing” excuses should not be used to prevent him from being required to demonstrate it. And, despite all the excuses, when a court finally scheduled a hearing on the merits, lo and behold, Obama actually could produce the birth certificate. Issue settled. Would have been settled a lot sooner if he hadn’t found it useful to keep the contraversy going, for reasons of his own.

          IMO, the candidate with the bigger citizenship clause problem in 2008 was McCain. It’s quite unambiguous that he was not a natural born citizen at the time of his birth, and I don’t believe Congress has a time machine that allows them to retroactively change such things; The term for somebody made a citizen after their birth is “naturalized”, not natural born.

          Now, if you can produce a clause of the Constitution, or even statutory law, requiring Presidents to have savory tax records, the situation with regards to demanding Romney’s returns would be comparable. I don’t believe you can. So, while the question remains at this point unsettled as to whether he was involved in that amnesty, he is not, unlike Obama, required to settle the matter.

          1. Brett,
            This might be a bit more convincing if he hadn’t met any and every reasonable standard a year or two before he releaased the “long-form” birth certificate that for some reason you accept as being more convincing than the official documentation he previously released, or for that matter contemporaneous newspaper reports and recollections of acquaintances. By any reasonable standard he’d met your “Constitutional requirement” (which I believe does not detail the methods of investigation and verification) years before.

            Meanwhile, while it’s not in the Constitution, Mitt Romney is up against the public-perception standard of “Is this guy a crook or not”. His pattern of behavior inspires questions far more reasonable than those asked about Obama’s birth, and perfectly normal levels of disclosure – purely voluntary disclosure that every recent candidate has decided to emulate – would go a long way to addressing these questions.

            But you persist in thinking that because the one long-settled question referred to the Constitution it was more of an open question than the other completely unsettled question …

          2. McCain’s legal team used “phony standing excuses” when his citizenship was challenged. It’s SOP.

            From the snopes article on the subject:

            In the motion to dismiss the New Hampshire suit, Mr. McCain’s lawyers said an individual citizen like the plaintiff, a Nashua man named Fred Hollander, lacks proof of direct injury and cannot sue.

            Daniel P. Tokaji, an election law expert at Ohio State University, agreed. “It is awfully unlikely that a federal court would say that an individual voter has standing,” he said. “It is questionable whether anyone would have standing to raise that claim.”

            While I’ll agree with you that McCain had a bigger citizenship clause problem than Obama, it wasn’t by much.

            If a consensus on the matter can be said to exist, it is that if John McCain is not a natural-born citizen under the law, it’s only because of an exceptional and narrow gap in the law that was subsequently corrected and was never intended to exclude someone in his circumstances from natural-born citizenship status, so it would be unfair to declare him ineligible for the presidency on that basis.

  3. Still think it’s funny how the contraception issue came to a head just around Valentine’s Day. Quite a few young’en may have availed themselves of that, and may even remember it in November.

  4. Just another indicator of how far away from the RBC they actually are at the national level – and judging from how many anti-women bills at the state level, at the state level too. Waiting for the widespread backlash. Any day now. Annnnnnnnnnnnnny daaaaaaaaaaaaaaaaay…

  5. Is there any evidence at all that the cheapest way to get contraceptives is to have a mandate on employers to provide them as part of the overall compensation package? Basic labor economics would tell you that the cost of a fringe benefit reduces wages by an equivalent amount. So unless there is some efficiency in having employers contract with insurers to provide things that could be bought with regular money that exceeds the obvious administrative and transaction costs, then we have a situation where there is a subsidy by non-fertile or non-sexually-active workers to sexually-active ones AND the amount of the subsidy is less than the benefit to the fertile and sexually active.

    Since it reduces overall welfare, it has to be justified by distributive justice.

    Is there some scheme of distributive justice where the infertile and celibate should be compelled to provide finanical benefits to the fertile and sexually-active? I am not seeing it.

    1. On the other hand, since the funding of contraceptives purportedly reduces the overall cost of health care by reducing the number of pregnancies all workers by this metric, should receive a pay increase.

      The “Job Creators” having extra money available will of course pass the surplus along to their deserving employees. No doubt John Boehner and Mitch McConnel are conferring on a bill to encourage “The Job Creators” to do just that. It’s the American Way! 😉

    2. What about schemes that help smokers quit? Why should my insurance money pay for skiers who risk breaking bones when I don’t do that? Or old-man Vi*gra? Or diabetes treatment when I eat well and am not at risk?

      Indeed, why don’t we make insurance completely a la carte and entirely personalized?

      Ponder it a little while.

  6. As for the “Death panels are fine, as long as employers control them” snark, “death panels” are INEVITABLE in any conceivable system of health care, since they are simply a reflection of the irreducible reality of economic scarcity. Providing everyone with all medical procedures that could conceivably benefit them is not compossible, even if the entire GDP were devoted to heatlh care procedures. This is a fact that sits uneasily with beliefs about the value of life we have good reason to treat as taboo, but it is a fact, and Mr. Zasloff is not entitled to another.

    1. Death panels may be inevitable, but they need not be inequitable. Blunt’s proposed legislation means that employees of selected companies might be condemned to suffering or even death for their immodest and slatternly ways, or even for random mischance that betrays God’s intention for them to die. This isn’t a sane system of providing health care.

    2. “Death panels are inevitable in any conceivable system of health care.” Exactly true: any insurer, public or private, or any individual person constrained by a budget, will have to determine which services he/she/it will pay for, which he/she/it will not. Democrats say that this should be done on the basis of publicly-available, transparent, comparative effectiveness research, as has been done in those nations that get the best health outcomes for the lowest costs. Republicans say it should be done based upon the subjective beliefs of the employer, done on the basis of how much money you have, or done on the whims of chance. That is a genuine philosophical disagreement.

      1. Another way of putting this is that the right tends to prefer market mechanisms for the allocation of scarce goods more than the left. The “subjective beliefs” of employers will be constrained by the labor market. Employers who offer a bundle of compensation less attractive than their competitors will (with all kinds of qualifications) be less desirable to work for.

        There’s a plausible case that some kinds of health care are more efficicntly provided by the state (or, less convncingly, through regulation-and-subsidization of private employers). Unpredictable health care disasters are hard to insure individually and people have trouble cognitively figuring out the risks ahead of time. I’m having trouble seeing how the same can be said about condoms and birth control pills.

        1. Your ignorance about birth control is unsurprising; that you’d brag about it is a bit more surprising. Here’s a hint for you: “birth control” is not the only medical application of “birth control pills”, and they can be used to beneficial effect for the health and lifestyle of women. And in the linked post the author of the legislation is quoted naming Christian Scientists’ Beliefs as worthy of legal protection and implementation in employer-provided health care – meaning that this goes far beyond contraception (and non-contraceptive medical uses of contraception) to include issues such as blood tranfusion, organ transplantation, and even any medical care whatsoever. Please explain how your employer imposing upon your medical care their belief that Every Sperm Is Sacred, or (per Blunt) that blood transfusion is a crime against God, is sane.

          And as to your twaddle about “market mechanisms”: are you trying to be funny? Even in a strong employment market, how many workers are blessed with the option of choosing between two otherwise identical offers of employment on the basis of the health plans that come with them? Even in a comfortable, fairly secure white-collar world many blog readers live in, how many people have that many options?

          1. I don’t understand how your first paragraph has any relation to anything I wrote.

            Equally, how many people have the option of changing jobs based on a small change in salary? And yet somehow the labour market provides for salaries greater than nothing.

            In other words, it isn’t a valid economic method to ask someone to intuit whether a change in compensation would affect their job choices and then conclude that the laboor market has no elasticity of supply.

            It is actually completely uncontroversial among labor economists of all political stripes that employees pay for employer-provided benefits. That fact has no particular ideological coloration.

          2. My first paragraph was a response to your dismissive attitude towards contraception, which indicated that its use was entirely foreseeable and controllable.

            I think that if you looked at the current market you’d find that a lot of people are being forced to accept reductions in their wages, sometimes swingeing reductions. And I rather doubt people pay as much attention to the fine points of their health plans as they do to their salary, or their prospects for advancement. The question in any case is whether “health care” should be regulated to meet minimum standards, very much as your car is required to have seat belts and brakes to qualify as being a car. This is, in fact, something the EEOC settles a dozen years ago, without apparently inspiring any major complaints at the time.

            As to your last, I’m not well informed about the thinking among labor economists, but I rather think you’re leaving out a big part of this: taxes. Sure, the worker’ compensation has to be calculated to account for the total cost of their employment: their salary, their benefits, the employer’s part of the payroll tax, their employer’s decision to put two-ply toiled paper in the washroom, etcetera. But you seem to have ignored the fact that unlike some other parts of the employee’s compensation (their salary, for example) their health benefits aren’t taxed – in effect, a big tax subsidy to health plans. Generally tax subsidies are used to encourage desirable behavior – home ownership, for example (for better or for worse), and health coverage that isn’t oddly expurgated.

          3. There is nothing “dismissive toward contraception” about arguing that providing it through insurance mandates is more costly than giving the employee the difference in wages and letting them buy it. It is more efficient to let employees spend take home pay on food than to require employers to provide it. That isn’t dismissive toward food, which is both a major source of pleasure and a necessity for good health.

            I don’t see why the EEOC should be the last word on what is efficient to insure and what isn’t. If something isn’t efficient to ensure and total compensation theory is correct, including it in a health care plan just reduces the wages of employees.

            Tax subsidies are beside the point. If the legislation was saying health care plans with birth control are ineligible for tax subsidies while other health care plans are, then you’d be right. But as it is, employees continue to get a tax-benefit for health plans with contraception in them.

          4. There is nothing “dismissive toward contraception” about arguing that providing it through insurance mandates is more costly than giving the employee the difference in wages and letting them buy it. It is more efficient to let employees spend take home pay on food than to require employers to provide it. That isn’t dismissive toward food, which is both a major source of pleasure and a necessity for good health.

            This assumes that providing contraception costs the insurer money (which seems to be disputed; see below); that is costs the health care system and the economy money (this is almost certainly wrong; the only reason providing contraception might not cost the insurer money is if the individual is assuming the cost); and it’s logic that would permit “health insurance” to be functionally meaningless: after all, if the person has to pay for the food that keeps body and soul together, why not the angioplasty as well?

            And it still ignores the tax difference: income used to but food is taxes, income the employer uses to but health insurance isn’t.

            I don’t see why the EEOC should be the last word on what is efficient to insure and what isn’t.

            No, the EEOC is an authority on what workplace provisions, including aspects of the healthcare benefits, it’s unjust to omit or exclude.

            Tax subsidies are beside the point.

            Well, given that the employer is seeking to use federally tax-subsidized money to pay for inferior insurance that doesn’t meet federal minimums, no, it isn’t. Also see above, where you’re trying to force consumers to use taxed income to pay for something that would have been paid for (if it even is a net cost) using tax-subsidized money.

      2. What really seems to be happening here is that the left is relying on the cognitive illusion that mandated employment benefits are free to the employee. Actually, the employee pays for them. But when employers react to this cognitive illusion by complaining that they are being forced to pay for things they disagree with, they are told it’s just a cognitive illusion, so suck it up papist crybabies.

        1. Well, no, in a few ways:
          1) according to some claims, contraception actually is free, because insurers that provide free contraception incur lower costs in pregnancy care, etcetera. I don’t know if these claims are true, but they’re worth keeping in mind.

          2) The issue isn’t who’s paying for health care, it’s what health care means. We don’t have great sympathy for employers who want to provide expurgated health plans that omit standard elements of gynecological care, or health plans that treat epilepsy as signs of demonic possession or of divine intercession. If they’re going to claim the tax benefits of providing health care, it has to be the real thing.

        2. This display of vapidly obstinate intentional wingnut stupidity is as
          infuriating as it is stupidly cruel.

          Onward into anecdata! I happen to be the husband of a woman and the father
          of a woman who have suffered for years with incredibly disruptive menstrual
          cycles. To the point that one was effectively completely disabled 1-3 weeks
          a month and the other only spent a few days dealing with intense debilitating
          pain by holding a fetal position on the floor in the bathroom in between vomiting
          episodes. And still one managed to make a fine career out of a MS in Chemical
          Engineering and the other is well into a college career that includes a full
          academic scholarship, and the reason they can both function more or less like normal
          human beings is the modern version of the pill.

          I am not the person you want to say to, in person, that you disagree with the
          medication that enables these people to lead productive lives.

          1. Sympathize, but you miss the point. Why does “access” mean through an employer provided health plan? Or any health plan. And if we want to consider it a health issue, then isn’t individually purchased coverage, or tax subsidized MSA type plans a better way to go? That way, folks who need Ben Gay to get around or whatever, would also be able to have “access.” The old major medical model, where smaller purchases (birth control pills, Ben Gay, checkups, etc.) were not covered was the way to go – affordable, reasonable, and where the risks were INSURABLE, not comprehensive.

            What we are headed for instead, which is what you guys (and Obama) really want, is that employers will simply drop all their coverages and we will have single payor. That way, we can have a lousy delivery system with indifferent providers that nevetheless leave the country broke like the UK, the other EU countries, Canada, etc.,etc.

          2. This is a response to “Redwave72”, since I’m not seeing a reply button:

            The idea that these people whose issues I just described need something akin to “Ben Gay”, is incredibly offensive.

            Care to meet for coffee?

            BTW, are you *really* so clueless that you don’t understand that every one of those countries that you list provide universal healthcare, both procedures and meds, including contraception, for about half the cost, and with generally the same or even better, outcomes as you beloved but ultimately stupidly run country?

            Lord save us from the utterly uninformed lawyer wingnuts.

  7. On what basis could Senator Blunt object to a Native American health plan covering peyote out of religious conviction?

    1. That one’s easy – under Blunt’s proposal the plan must be free to cover peyote, but as peyote isn’t legally available the coverage would be moot.

      The more interesting thing is that under Blunt’s legislation the plan could cover only peyote, and cover neither conventional pharmaceuticals nor secular counseling.

  8. OK, the Repubs are absolutely horrified about the idea of employers having to be even distantly associated with the slightest hint of an insurance company helping their employees to obtain contraceptives.

    So … how about a nationwide single-payer plan that just provides contraceptives cheaply to anyone who needs them? Of course Congress would never go for it, but maybe there’s some way it could be implemented under existing rules.

    The insurance industry, private employers … none of them would have to soil their hands by offering coverage for contraceptives.

    Of course, the GOP would throw a fit (single-payer AND cheap contraceptives!) but that’s a feature not a bug IMHO.

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