Posted on Slate.com
By Mark Joseph Stern and Perry Grossman
One day after House Republicans passed the American Health Care Act, Louisiana Republican Sen. Bill Cassidy outlined his vision of Obamacare repeal. Any bill the Senate passes, Cassidy explained, must pass “the Jimmy Kimmel test,” meaning that everyone, including newborns, can “get the care they need.” These remarks align with Cassidy’s comments in March, when he told the New York Times that “there’s a widespread recognition that the federal government, Congress, has created the right for every American to have health care.”
There is, of course, a chance that Cassidy could simply ignore this “widespread recognition” and vote for a monstrous bill anyway. But that will not change the underlying truth of his initial observation. Although the United States lacks a constitutional right to health care—unlike more than half of the world’s countries—seven years of Obamacare have established, in most Americans’ minds, a basic right to affordable medical treatment. Republicans might be able to repeal Obamacare, but they can’t reverse that sea change. And any attempt to do so will likely wreak political devastation.
To understand how health care came to be seen as a right, it’s useful to examine a surprisingly close analogue: marriage equality. For many years in the United States, marriage was viewed as a kind of privilege—a biblical sacrament that states choose to honor through legal recognition. But marriage isn’t a sacrament for everyone, and not everyone who wanted to get married could do it: Many states restricted marital privileges on the basis of irrational classifications like race.
Civil rights attorneys successfully challenged this vision of marriage as a benefit, rooted in religion, that states can revoke for some individuals. The target was Virginia’s anti-miscegenation law. A trial judge upheld the law, explaining, “Almighty God created the races” and “placed them on separate continents” because “he did not intend for the races to mix.” But in Loving v. Virginia, the Supreme Court disagreed, ruling that marriage is a constitutionally protected fundamental right that “cannot be infringed by the state.”
Thanks to Loving and its progeny, Americans now tend to discuss marriage as a right guaranteed to all, not a privilege available to some. Our discussion of marriage as a “right” has transformed the biblical notion of marriage into a legal one. That’s why, by 2015, marriage equality seemed so inevitable. If the government cannot limit marriage rights on the basis of race, why should it be able to limit them on the basis of sex?
Over the past seven years, we have witnessed a similar (if subtler) transformation in discussions around health care. Republicans have long characterized access to quality health care in terms of an economic good, available to those who can afford it, with those unable to afford it at the mercy of private charitable organizations—frequently, religious organizations. This is consistent with the vision of a party that has worked hard to devolve core portions of the social safety net to faith-based groups for decades. For Republicans, the inability to afford health insurance isn’t merely a matter of economic misfortunate; it’s a moral failing. Alabama Republican and Freedom Caucus member Rep. Mo Brooks captured this sentiment precisely when he said in an interview with Jake Tapper that “people who live good lives” don’t develop pre-existing conditions and are thus entitled to pay less for health care, while others might find themselves priced out of the health insurance market altogether.
Conservative commentator Ben Shapiro acknowledged that Brooks’ statement was “expressed in the dumbest way possible,” but he agreed that failing to purchase health insurance was irresponsible and immoral and wrote: “None of this means we shouldn’t have social support for those who fall through the cracks—who lose their jobs during a pregnancy, for example. That’s what communities and churches and hospital charities are for.” Republican attitudes on this topic were perhaps best summarized by Mark Green, Republican Tennessee state senator and Trump’s former nominee for secretary of the Army, who in 2015 called government involvement in making health care broadly available to poor people an “injustice” because “[t]he person who’s in need … they look to the government for the answer, not God.” In these terms, health care is a privilege for those blessed enough to pay for it—or blessed enough to accept religious charity.
Democrats have been pushing for universal health care since the New Deal. In 1978, Sen. Ted Kennedy captured his party’s sentiment by declaring that health care is “a basic right for all, not just an expensive privilege for the few.” But the massive expansion of health insurance coverage brought about by Obamacare gave that language popular traction on an unprecedented scale. Most Americans now expect the government to establish some minimum standard of care. A recent poll by the Pew Research Center found that “60% of Americans say the government should be responsible for ensuring health care coverage for all” and, most strikingly, that Republicans with family incomes of less than $75,000 per year are increasingly a part of that group. Those numbers may continue to grow as tens of millions of people find their health care coverage jeopardized by Trumpcare.
Only by providing health coverage to everyone can costs be reduced.