Health Care Overreach: Federalism and Federal Mandates

As people across the country are waking up to the fact that the Obama administration's latest "accommodation" accommodates only the contraceptive lobby, one continues to hear from the usual liberal voices variations on the same theme: "What's all the fuss about?  Catholics (and others) aren't being required to use contraceptives."

Let's see whether I can make the consternation over the HHS mandate a little clearer to our liberal friends.  Let's say that, by a strange quirk of fate, I'm now the president of the United States. I'm president of the United States, and I have a great idea.  I've decided that, because of their well-documented benefits to women's health, all health care plans in the United States shall henceforth be required to cover, without co-pay charges, instruction in the Creighton Method of Natural Family Planning.  In fact, I got together a group of scientists and doctors, and they produced a report raving about the benefits of the Creighton Method of Natural Family Planning.  (No, not the Billings Method -- all the doctors on my "high-level panel" specialized in Creighton, so you Billings people are getting nothing.)  It helps women avoid unwanted pregnancies better than any other method and allows them to space their births with more certainty.  It doesn't depend on the infusion of high amounts of unnatural drugs or steroids into a woman's body that will upset her natural cycles, making future pregnancies more difficult.

Indeed, teaching women the Creighton Method of Natural Family Planning will, in fact, save us a lot of money.  Taking contraceptives is a continual expense, as women must continue to "pop pills" for as long as they wish to prevent pregnancy.  Teaching women the Creighton Method of Natural Family Planning, on the other hand, involves a one-time charge (or perhaps two or three, if women wish to brush up their knowledge and skills), after which there would be no need for expensive drugs.  Plus, the Creighton Method of Natural Family Planning would help women to understand their own bodies better and allow them to notice subtle changes in their bodies and cycles, making it more likely that they will detect early signs of various dangerous cancers or other pathologies.  The medical and social benefits are clear and without question.

And now, because of my great idea, every hospital and school and business in the country --  including, of course, Planned Parenthood, NARAL, and NOW -- are all going to be required by the federal government, on pain of imprisonment or severe fines, to pay out their scarce health-care resources to support education in the Creighton Method of Natural Family Planning.  They might be just a tad upset at that sort of requirement, and with some justification.  "Why are we being required to cover services for a procedure we don't believe in and that we in fact find overly burdensome to women and not really beneficial to women's health in the circumstances that we think are most important: namely, when they're sexually active but want to avoid unwanted pregnancies?" 

"Well, you're entitled to your opinion," I reply, "but the health benefits are well-documented.  And why, after all, are you so upset?  You're not being required to do the Creighton Method.  Nor are you even being required to get the training.  All you're being asked is to make it possible for the woman who want it to get it --  at your expense, admittedly, but still, we're not forcing you to do anything (except pay for something you disagree with).  Where's the violation of your conscience?  The Creighton Method is a good thing, after all; it has demonstrated benefits.  So why the anger?

"It can't be over the cost.  It doesn't cost that much -- although it costs enough that we need to subsidize it so that all women have access to it.  Indeed, it will save us money in the long run over more expensive drug-oriented options favored by the 'millionaires and billionaires' who run the huge multinational pharmaceutical corporations.  And how could anybody be opposed to requiring people to cover something that benefits women's health?

"Besides," I add with a mischievous grin, "my secret study shows that 60% of your employees have already tried Creighton at one point or another in their lives!"  So we're not really forcing anything on women -- they already know what's best for them -- we're only asking the unresponsive, hidebound ideological bureaucrats in Planned Parenthood, NARAL, and NOW to make it universally accessible for all women.

"Wait a minute," NARAL and NOW are likely to respond. "Where did you get that number?  We know our employees, and while we won't say that none of them uses Creighton -- we don't fire them, after all, if we discover they do -- we're pretty sure that the number isn't 60%."

"No, no," I respond. "I have studies that show it.  You'll note, of course, that it specifies women who have ever tried it at any point in their lives.  So if they ever showed up at a training session, wrote for a brochure, or talked to a friend about it, they'll show up in our statistics."

"Do you mean to tell me," our intransigent and hidebound NOW bureaucrats ask incredulously, "that if an employee of ours ever dabbled with it, even years ago when she was young, that's showing up as a positive in your statistics?  Is that how you're getting 60%?  Based on that, you're letting people think that 60% of our employees are currently using Creighton.  But that's just a lie!"

"I just report the numbers," I tell them.  "It's not my responsibility if other people misrepresent them."

Do you see how this works?  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.

There are important reasons why the Framers of our Constitution made a government of checks and balances.  Once the federal government gets hold of things that might just as well (or better) be decided by state or local governments, or by your own company, or by you, we're going to have trouble with the people in government who will want to endlessly expand their power to do "good."  The Framers wisely feared the desire to do "good" and the endless overreach it engenders as much as they feared the desire to get away with petty villainy.  Haven't we learned that lesson yet?  And besides, don't we have some other problems we really need the federal government to be dealing with -- ones that the Constitution actually delegates to them (budget, anyone?) -- rather than having them micro-manage what every health-care plan in the nation must be covering and at what cost -- a power very purposefully not delegated to them? 

Randall B. Smith, Ph.D., is an associate professor of theology at the University of St. Thomas in Houston, Texas, and the 2011-12 Myser Fellow at the Notre Dame Center for Ethics and Culture.

As people across the country are waking up to the fact that the Obama administration's latest "accommodation" accommodates only the contraceptive lobby, one continues to hear from the usual liberal voices variations on the same theme: "What's all the fuss about?  Catholics (and others) aren't being required to use contraceptives."

Let's see whether I can make the consternation over the HHS mandate a little clearer to our liberal friends.  Let's say that, by a strange quirk of fate, I'm now the president of the United States. I'm president of the United States, and I have a great idea.  I've decided that, because of their well-documented benefits to women's health, all health care plans in the United States shall henceforth be required to cover, without co-pay charges, instruction in the Creighton Method of Natural Family Planning.  In fact, I got together a group of scientists and doctors, and they produced a report raving about the benefits of the Creighton Method of Natural Family Planning.  (No, not the Billings Method -- all the doctors on my "high-level panel" specialized in Creighton, so you Billings people are getting nothing.)  It helps women avoid unwanted pregnancies better than any other method and allows them to space their births with more certainty.  It doesn't depend on the infusion of high amounts of unnatural drugs or steroids into a woman's body that will upset her natural cycles, making future pregnancies more difficult.

Indeed, teaching women the Creighton Method of Natural Family Planning will, in fact, save us a lot of money.  Taking contraceptives is a continual expense, as women must continue to "pop pills" for as long as they wish to prevent pregnancy.  Teaching women the Creighton Method of Natural Family Planning, on the other hand, involves a one-time charge (or perhaps two or three, if women wish to brush up their knowledge and skills), after which there would be no need for expensive drugs.  Plus, the Creighton Method of Natural Family Planning would help women to understand their own bodies better and allow them to notice subtle changes in their bodies and cycles, making it more likely that they will detect early signs of various dangerous cancers or other pathologies.  The medical and social benefits are clear and without question.

And now, because of my great idea, every hospital and school and business in the country --  including, of course, Planned Parenthood, NARAL, and NOW -- are all going to be required by the federal government, on pain of imprisonment or severe fines, to pay out their scarce health-care resources to support education in the Creighton Method of Natural Family Planning.  They might be just a tad upset at that sort of requirement, and with some justification.  "Why are we being required to cover services for a procedure we don't believe in and that we in fact find overly burdensome to women and not really beneficial to women's health in the circumstances that we think are most important: namely, when they're sexually active but want to avoid unwanted pregnancies?" 

"Well, you're entitled to your opinion," I reply, "but the health benefits are well-documented.  And why, after all, are you so upset?  You're not being required to do the Creighton Method.  Nor are you even being required to get the training.  All you're being asked is to make it possible for the woman who want it to get it --  at your expense, admittedly, but still, we're not forcing you to do anything (except pay for something you disagree with).  Where's the violation of your conscience?  The Creighton Method is a good thing, after all; it has demonstrated benefits.  So why the anger?

"It can't be over the cost.  It doesn't cost that much -- although it costs enough that we need to subsidize it so that all women have access to it.  Indeed, it will save us money in the long run over more expensive drug-oriented options favored by the 'millionaires and billionaires' who run the huge multinational pharmaceutical corporations.  And how could anybody be opposed to requiring people to cover something that benefits women's health?

"Besides," I add with a mischievous grin, "my secret study shows that 60% of your employees have already tried Creighton at one point or another in their lives!"  So we're not really forcing anything on women -- they already know what's best for them -- we're only asking the unresponsive, hidebound ideological bureaucrats in Planned Parenthood, NARAL, and NOW to make it universally accessible for all women.

"Wait a minute," NARAL and NOW are likely to respond. "Where did you get that number?  We know our employees, and while we won't say that none of them uses Creighton -- we don't fire them, after all, if we discover they do -- we're pretty sure that the number isn't 60%."

"No, no," I respond. "I have studies that show it.  You'll note, of course, that it specifies women who have ever tried it at any point in their lives.  So if they ever showed up at a training session, wrote for a brochure, or talked to a friend about it, they'll show up in our statistics."

"Do you mean to tell me," our intransigent and hidebound NOW bureaucrats ask incredulously, "that if an employee of ours ever dabbled with it, even years ago when she was young, that's showing up as a positive in your statistics?  Is that how you're getting 60%?  Based on that, you're letting people think that 60% of our employees are currently using Creighton.  But that's just a lie!"

"I just report the numbers," I tell them.  "It's not my responsibility if other people misrepresent them."

Do you see how this works?  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.

There are important reasons why the Framers of our Constitution made a government of checks and balances.  Once the federal government gets hold of things that might just as well (or better) be decided by state or local governments, or by your own company, or by you, we're going to have trouble with the people in government who will want to endlessly expand their power to do "good."  The Framers wisely feared the desire to do "good" and the endless overreach it engenders as much as they feared the desire to get away with petty villainy.  Haven't we learned that lesson yet?  And besides, don't we have some other problems we really need the federal government to be dealing with -- ones that the Constitution actually delegates to them (budget, anyone?) -- rather than having them micro-manage what every health-care plan in the nation must be covering and at what cost -- a power very purposefully not delegated to them? 

Randall B. Smith, Ph.D., is an associate professor of theology at the University of St. Thomas in Houston, Texas, and the 2011-12 Myser Fellow at the Notre Dame Center for Ethics and Culture.

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