A final thought in this “Obamacare-at-the-Court” week: Does the Emergency Medical Treatment and Active Labor Act (EMTALA) make something like Obamacare’s mandate not only inevitable but legitimate? Enacted in 1986, EMTALA requires hospitals to provide care to anyone needing emergency treatment regardless of citizenship, legal status, or ability to pay. It’s often cited as the very reason we have to have Obamacare’s individual mandate, to cover the costs of providing for the uninsured indigent. As the Washington Post editorialized this morning, “If you end up in the emergency room, you will be cared for, as federal law demands. The government, already deeply involved in regulating the health-care market, has a legitimate interest in encouraging you to prepare for such an eventuality.”
Fair enough, but it must do so by constitutional means, and that’s just the problem here. Not every means that would solve a problem is authorized by our Constitution for limited government. In truth, however, the constitutional problem begins with EMTALA itself: neither the taxing nor the commerce power, if understood as the pre-New Deal Court understood it, authorizes Congress to compel hospitals to be Good Samaritans. In a free society, health care is no different than any other product or service: If you need or want it, you pay for it, failing which you don’t get it.
But the Constitution aside, that’s not how, “as a society,” we decided to go about things in 1986. (See here for a better way to serve the indigent.) We imposed the burden of providing such services on hospitals, which in turn shifted the costs mainly to those of us who do pay for the services we receive. To that complex system of “private” socialization Obamacare would add yet another layer of even more complex “public” socialization, the individual mandate being only one element in the mix. Needless to say, under neither arrangement is efficiency or the wise use of resources the goal.
So let’s go back to EMTALA and the Good Samaritan to see if there might be a better way. Traditional Anglo-American law has never compelled anyone to come to the aid of another unrelated person. We’re free to be Good Samaritans—that’s virtuous—but we don’t have to be. If we do aid another, however, we cannot then turn around and charge that person for the “service” we provided, however much it might be “decent” in turn for that person to compensate us for our troubles and losses. But here, we as a society are compelling hospitals to be “Good Samaritans.” In other words, we, not the hospitals, are the “virtuous” ones. Well if that’s the case, then we can’t really ask the hospitals to bear the costs of “our” virtue; nor, for the same reason, is it proper for the hospitals to shift the costs to only those who already pay for their services. Rather, if we, “as a society,” want to be virtuous in this way, then we, as a whole society, should bear the costs.