Tag Archives: EMTALA

Is Health Care a Right?

If you’re a limited-government advocate, you’re almost guaranteed to be a detractor of the Affordable Care Act (ACA) colloquially known as Obamacare. The AHCA from the GOP designed to replace the ACA, has recently been passed by the House, but is largely believed to not have a chance in the Senate.

President Barack Obama delivers a health care address to a joint session of Congress at the United States Capitol in Washington, D.C., Sept. 9, 2009. (Official White House Photo by Lawrence Jackson)

If you’re old enough to recall the Clinton presidency, you may remember that Hillary Clinton was appointed by her husband Bill to the “Task Force on National Health Care Reform.” Her mission was to improve the state of health care in the United States, and her suggestion was a single-payer system similar to what many nations in Europe and Canada use.

This single-payer system was originally supported by President Obama as well, prior to becoming president. But the political climate in America is still one of limited government more often than not, so the ACA was a compromise Obama was willing to make to achieve his goal of every American having “basic access to health care.”

The bill being one of the larger in American history had a lot to it, and as such, had a lot of things people from many places on the political spectrum took issue with.

The extreme of the left, like self-proclaimed socialist Bernie Sanders argued for a universal plan, not a privatized option like the Affordable Care act. So in their estimation, the plan didn’t nearly go far enough.

Those on the right, felt the mandate requiring people to buy insurance was counter to American values, and challenged that, as well as several other facets, in the Supreme Court, ultimately losing their fight after Chief Justice John Roberts arguably rewrote the law to allow it to survive instead of casting the deciding vote to strike it down.

Supreme Court of the United States Chief Justice John Roberts

Many libertarians like myself, are left wondering why government should be involved in health care in the first place. I think our position is pretty consistent and straight forward, although I always cringe at the idea of speaking for other people. But I will try to state the libertarian position as I’ve consistently observed it.

Health Care is not a Right

The argument from those pushing for government-funded health care is the idea that it’s a right—some going so far as to say it’s an extension of your right to life. But let’s break that down for a second, as it depends on how you define rights in general.

The Constitution doesn’t mention health care, so there’s no honest metric one could use to say it’s a Constitutional right. However, most argue that it’s a basic human right.

The United States Constitution

If we compare health care to other well-understood basic human rights, it becomes fairly easy to understand how healthcare is different. Religious freedom, freedom of speech, freedom in general, life, air, etc., these things all have one thing in common. They do not require any action from another person.

Rights by definition, should not involve the action of another person, because otherwise, your right to have their labor or goods trumps their right to keep their labor or goods—therefore one person ends up having more rights than another.

Healthcare requires goods produced by the pharmaceutical industry and medical equipment from manufacturing companies, as well as the efforts of a medical practitioner like a doctor or nurse, it isn’t just something that exists in the ether for all to consume.

If we force those people to do such work through laws like EMTALA, which require emergency rooms to treat people, regardless of their ability to pay, this arguably violates the 13th amendment which states:13th Amendment to the U.S. Constitution: Abolition of Slavery

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Making a doctor save someone’s life versus giving them the option, even if they get paid to do so, is both immoral and potentially unconstitutional.

A quick internet search yielded no instance where SCOTUS has granted certiorari (agreed to hear) any petition challenging EMTALA, although the 11th Circuit upheld the law in BAKER COUNTY MEDICAL SERVICES INC v. ATTORNEY GENERAL, August 2014, The challenge there was not against the 13th amendment, it was against the 5th, which reads as follows. (The bold portion was what the challenge argued against.)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The reason the law was upheld, is because the law only applies to hospitals which voluntarily work with Medicare. So the court ruled that their participation was voluntary, while the plaintiffs argued not taking Medicare is an undue financial burden, and therefore not really a choice. (Almost all hospitals accept medicare, because they’d have a hard time making a profit if they rejected all those who are on it). Government often gets so involved, that they create the problem by virtue of their intrusiveness in the marketplace.

The Supreme Court Of The United States

Moving past EMTALA, if we assume that the doctors help someone voluntarily, and expect to get paid by government, then the second issue arises that the taxpayer and/or fellow healthcare consumers, end up footing the bill.

What logical argument can one make to indicate that person A is responsible for person B? While it’s certainly altruistic in its intent, and I understand the idea that if we all band together to help those in need, society is potentially better off because of it; that’s still a moral judgement you’re making that others may not share with you.

There’s also a rather large hypocrisy in play for these beliefs. Speaking to a doctor who promotes a single-payer system, my argument was that at some point, that doctor expects to retire. While my taxes help pay for health care, my dollars don’t cure anyone. My dollars pay a doctor who then cures someone.

So if a doctor chooses to take a day off, or retire, they have opted to not help someone who could have used help. If I were to tell those doctors that now the government gets to dictate how many hours they work, and what time they may take off, they’d be apoplectic. Yet I do not get to choose how much of my paycheck funds the health care of another.

Much like mass and energy are interchangeable because one can be transformed into the other, so are labor and money for the same reason. Forcing someone to give up their money to pay for services they’re not receiving is no more moral than forcing them into servitude for the same purpose.

As much as it may seem heartless not to do it, you cannot divorce that fact from the equation.

This brings me to the “are you just going to let them die” argument, that is often bandied about as justification for forced medical care.

The number of visits to a doctor that are life threatening vs just quality of life issues are very small. Even Emergency Room visits, according to one government study puts the number of visits that could have been treated by a normal doctor or Urgent Care facility vs the emergency room at somewhere between 13.7 and 27.1%. That doesn’t include all the times people just went to their doctor, or an Urgent Care facility. So it is more than fair to assume that less that 10%, maybe even less than 1% of all medical care required is non-life-threatening.

If that’s true, then most of the time care may be refused, it is not about letting someone die at all.

But also, if we go back to labor and money are interchangeable, arguing that myself or anyone else is “just letting someone die” assumes that we owe them their life. Which again means that the government would get to decide when a doctor may retire or otherwise not work.

Waiting in Emergency department

While it’s easy for those of us who aren’t medical doctors to sit at home, and say “someone should help those people” (referring to those who can’t afford to pay for health care), the fact is that any government requirement for them to be helped requires violating the actual enumerated constitutional rights and largely accepted human rights of a number of people, in order to preserve a non-enumerated right of one person.

If you want to help people, you should volunteer to help. Go to school to learn medicine, and do the good deeds you want done. But the moment it becomes compulsory for you or anyone else, it is no longer moral.

With the number of charities that were doing great work to help the less fortunate before laws like this were passed, the idea that such people didn’t get help, is misguided. While there were some people who did not receive care, there were a good number who did. But more importantly to libertarians like me, liberty remained in tact, and not one right was violated.

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The Emergency Medical Treatment & Labor Act Poll

As you may or may not know, (you’d know if you read my blog anyway) in 1996 the federal government passed the Federal Emergency Medical Treatment and Labor Act (EMTALA) which requires hospitals to aid a dying patient regardless of their ability to pay or circumstances surrounding their injuries.

Do you feel this is a good thing, bad thing, or somewhere in between?

Utopia: The Grand Oxymoron

Gary Nolan (and THE Scrappy Doo)
Gary Nolan (and THE Scrappy Doo)

The Associated press recently reported here that in Michigan, after a year of repealing their mandatory helmet law, motorcycle injury costs were on a significant rise. Since more riders are riding sans helmet, this makes sense. But is it a problem? I say yes and no.

As you may know, the Emergency Medical Treatment and Labor Act (EMTALA) which passed in 1996 prohibits a practice called patient dumping, thus requiring hospitals to treat critically ill or injured patients regardless of their ability to pay, or the reckless actions that may have put them in that situation.

Helmet Law Map
Helmet Law Map

EMTALA is a very good example of how one law often leads to another which is only justified by citing the first. We libertarians argue that the duty to protect our rights is the only duty of government. EMTALA gives the left a reason to use our own arguments against us by saying that we have to enact helmet laws to protect the public from having to pay for their reckless decisions, when if we didn’t have EMTALA in the first place, that wouldn’t be an issue.

Health care is part of the market place, but people often see hospitals as a public service like local police, fire, and rescue, then pass laws that treat them as such. Their argument being that if government has a duty to protect your life, then health care is, by extension, a right as well, and thus a role of government.

Why do I believe otherwise? Because government mandated health care means I have to pay for your poor choices; like doing drugs, over-eating, or riding a motorcycle without a helmet. Therefore, it violates my right to property to preserve your right to life. A conflict that only occurs if you choose the opinion of those pushing for health care as a publicly mandated service that must be provided to everyone. If it’s a private service available to those who can pay for it or those whom doctors choose to help pro-bono, the conflict is gone.

We feel it’s morally wrong to let someone die—I do to, to some extent. But it’s a moral issue, not a legal one. Just as I don’t want the government outlawing adultery, lying, or just generally being a jerk, I don’t want them outlawing the ability of a doctor to decide to help or not help someone who has done themselves harm—passing those costs on to me afterwards.

Health Care CostsWe all agree that when someone dies, it is sad, even tragic. But we also all know that no one gets out alive. Death is a natural and unchangeable part of life, at least for now. So if we understand we’re all going to die anyway, we cannot spend ourselves into oblivion trying to evade the inevitable.

When asked about the difference between libertarians and authoritarians, one of the distinctions I feel is often overlooked is that authoritarians are idealists, libertarians are realists. Authoritarians believe that government can create a Utopia if they just spend and regulate enough to rid the world of every immoral or dangerous act; creating a perfectly sterile and safe society. Libertarians see this as foolhardy and misguided goal.

While I generally abhor comparisons to Hitler; they’re so often hyperbole used for shock value, in this case it is somewhat appropriate here. Hitler also believe he could create a Utopia through ridding the world of all but the master race and by using advancements in genetic engineering. What he wanted to do violently and unethically, authoritarians aspire to achieve through legislation and regulation.

“The rich should all be like Bill Gates and Warren Buffett, giving their money away to charity and happily paying more taxes. If they don’t, we’ll legislate it away from them” is just a financial version of “People should all worship this particular god or be killed.” One is an infringement of property, one life, but our Constitution guarantees rights to both. So why tolerate the first if we wouldn’t dream of tolerating the second?

I don’t want a boring life without any danger, and I defy you to honestly tell me you’ve never done something reckless just for the thrill of it. But if we take the authoritarian mentality to its logical conclusion, all risky behavior will be illegal.

Casual BASE Jump
Casual BASE Jump

We ride motorcycles without a helmet (I alternated depending on my mood), jump out of airplanes, or engage in extreme sports because we enjoy the freedom and the excitement that comes from the inherent danger. Humans love pushing the envelope, and without it, we wouldn’t be happy. So doesn’t that defeat the point of a Utopia?

I’m sad for these people who got injured without helmets. I was wearing mine when I wrecked and despite my noggin surviving in tact, I still got a collapsed lung out of the deal. Maybe we should legislate a suit of armor for motorcycle riders, and training wheels while we’re at it? The last two of course seem silly, so why is the first not?

Risk is fun, but risk means there’s also a chance of harm. While death may be the downside of risk, no one wants to live in a world without it—we’d all effectually become drones.

So I say that Utopia is an oxymoron. It’s supposed to be a perfect world where everyone is happy, but human nature dictates that almost no one would actually be happy in a Utopia. So let’s always mourn the lost—I’m not arguing that death is good; but let’s champion the freedom that allowed them to live and die by their own accord instead.

Drug Legalization is the Yin, don’t forget the Yang

Gary Nolan (and THE Scrappy Doo)
Gary Nolan (and THE Scrappy Doo)

Recently on Stossel, Ann Coulter made an argument that was factually accurate, yet fundamentally wrong if she wishes to fight for liberty, where she is in essence proposing to treat the symptom, not the cause.

She argued that drugs should be illegal because of our welfare state. Meaning that because a drug user destroys themself, they usually end up in a hospital with conditions arising from drug use. Rarely can they afford to pay for treatment since many are unemployed and/or broke from their habit; so as a result, their expenses are often at the expense of others. Therefore; by her logic, these drug users are violating our right to property (money) by burdening us with the costs born from their habit.

Ann Coulter
Ann Coulter

The reason this argument upsets me is that she’s going after the users who are only hurting themselves instead of going after the government for compelling hospitals to help them.

In 1986, Congress passed the Emergency Treatment and Labor Act (EMTALA) as part of COBRA. It prohibits a hospital from turning away a patient in need of emergency care, regardless of their ability to pay.

But hospitals, like any other business, should have the right to choose whether to help someone based on their own criteria. Make it easier for a hospital to garnish accounts, property, and wages if the patient agrees to it, or allow them to let nature take its course if the patients refuse.

If a hospital wants to have a free clinic supported by charitable donations, they should be lauded for doing so. Many already do this. But if you opt to kill yourself, or engage in behavior that may get you killed, that’s your right. It’s none of the government’s business, and certainly not the responsibility of hospitals and taxpayers to take that right from you.

When I make this argument, people accuse me of sociopath wanting others to die. But like any other strawman argument and ad hominem attack, that’s not what I said—it’s a diversionary argument. I don’t want people to die, and would vehemently fight to save a family member from their attempts at hari-kari, but I’m not OK with being pilfered of my earnings to keep the entirety of the American populace alive, especially those in danger due to their own lack of personal responsibility or desire to die.

As I said in my previous article,  illogical arguments that destroy your rights, in a free country, the starting point must be that everything is legal. From there, one must make a case as to why something should be made illegal by showing that it infringes on the rights of another. So making laws that protect someone from their own self-destructive behavior is fundamentally wrong.

As long as the government compels hospitals to provide care to people, regardless of whether or not they can pay, then arguing that such activity should remain illegal under that paradigm is fair. The problem with this tactic is that I can make the same argument for taking away alcohol, cigarettes, Cheetos, red meat, or Bloomy’s big soda ban.

So while Ann’s argument makes sense, it only makes sense if we just roll over and take the assault on liberty that is EMTALA. I’ve never gotten the impression Ann Coulter is afraid to say what she thinks, so ignoring this lends me to believe that she’s either given up fighting for liberty in favor of taking the path of least resistance, she’s ignorant, or there’s something else at play; which I’ll get to in a moment.

Another common argument is that it is illegal because it cannot be easily taxed. If I apply some basic skepticism, I have to look at this is a false argument too. First, while I think politicians are not always honest, I don’t believe they’re evil. I can’t rationally imagine they sit in a room and say, “We can’t let people do something they love unless we figure out a way to tax it.” I think one has to be mighty jaded and cynical to believe that’s happening. I can’t prove it doesn’t, but I’m not buying it until someone shows me evidence it does. Politicians are people, just like you and I; let’s not make them out to be satan’s minions.

Just a dude growin' some bud
Just a dude growin’ some bud

Although marijuana is significantly easier to grow than tobacco in the U.S., the fact remains it can be done, and prior to corporations with assembly lines, it was done. Yet, companies assemble cigarettes and people buy them because it’s easier than doing it themselves. The government overtaxes them like it’s part of their religion, which I believe it actually may be, but people don’t seem to care enough to resort to making their own. I have a friend who buys raw tobacco and makes them because he’s poor and it’s cheap, so it is done on occasion, but most simply can’t be bothered.

So where do I believe the problem truly resides? Ignorance and religious conditioning. The ignorance part is seen every time someone makes the improper statistical argument that marijuana is a gateway drug (Also explained in illogical arguments that destroy your rights). People believe marijuana is capable of doing a myriad of things that science has proven it can’t or generally won’t do.

As for the religious component; we’ve been conditioned to believe using mind-altering substances is a morally wrong thing to do, regardless of the fact it isn’t harming anyone else. Even alcohol, which is legal now by virtue of the disaster of prohibition, is still restricted on Sundays and after certain hours of the evening in most states; this is solely because of religious values. Don’t believe me? Remind me again, what is special about Sunday?

While I don’t necessarily believe politicians are consciously outlawing such things based on religious views, I believe that religious conditioning is causing them to subconsciously make decisions they feel are morally just, based on what they’ve been taught, not what science might have proven to the contrary. Much like a bad detective may look for evidence that a husband is his wife’s murderer based on statistics and pre-conceived notions instead of following the evidence without bias.

The 1st Amendment
The 1st Amendment

While we have a clear first amendment that prohibits laws establishing or prohibiting religion, we seem to be far too tolerant with laws that are based on religious principles instead of the protection of one’s rights.

Since this is a fine line, lawmakers make diversionary arguments to deflect away from the fact their legislation violates the spirit of the 1st amendment such as one like Ann Coulter’s argument. It’s easier to attack the drug user’s rights than to fight Washington. Since they’ve been conditioned by their religion to believe that these people are behaving immorally, taking that right away from them is inherently good in their eyes.

Because Americans are a caring and moral people, we’re quick to pass laws to prevent them from killing themselves or being declined a life-saving service they cannot pay for—liberty for the doctor or taxpayer be damned. But when us libertarians argue to let people use, we also have to be OK with letting those people die. If you cannot reconcile that, then you must side with Ann Coulter on this issue.

Note about the author: I have never used, nor have much interest in using marijuana. I care about liberty, not getting high.