Opinion

Skinny Bill Defeat: The Long And Winding Road that Leads to Universal Healthcare

This article first appeared on the Dorf on Law site.

The legislative free-for-all currently unfolding in the Senate will test the proposition that it is impossible for a small-d democratic government to repeal a major entitlement program.

Conservatives who opposed the Affordable Care Act fought so hard to block it in the courts before it went into effect and then before it became too entrenched because they believed—as did progressives who defended the ACA—that what psychologists call the endowment effect would protect the ACA.

The endowment effect makes people value something they already have more highly than something they don't. That psychology certainly operates among the public, with polls showing that there is much greater support for retaining the ACA than for any of the GOP proposals to repeal or repeal-and-replace.

If Congress nonetheless manages to repeal or, more likely, weaken, the ACA, that will not be a refutation of the existence of the endowment effect. It will merely be a demonstration of the undemocratic features of our national government—especially the grossly disproportionate representation given to small states in the Senate and gerrymandering in the House.

GettyImages-823749738 Sen. Susan Collins (L) (R-ME) and Sen. Lindsey Graham (R) (R-SC) leave the the Senate chamber at the U.S. Capitol after voting on the GOP 'Skinny Repeal' health care bill on July 28, 2017 in Washington, DC. Three Senate Republicans voted no to block a stripped-down, or 'Skinny Repeal,' version of Obamacare reform. Justin Sullivan/Getty

Even then, passage of an unpopular repeal (skinny or otherwise) or repeal-and-replace would not necessarily stand as a condemnation of American democracy unless and until Republican Senators and House members fail to pay a price at the polls.

Meanwhile, however, most of the attention currently being paid to the congressional drama overlooks the endowment effect in reverse. When asked whether it is a good idea to strip 22 or 23 million people of their health insurance, most Americans have the good sense to say no.

The unasked question is whether it is also a good idea not to provide health insurance to the 26 million Americans who still lack it.

To be sure, that question is not entirely unasked. Sen. Bernie Sanders and the network he created during his 2016 presidential campaign have been using the debate over Obamacare repeal as an occasion to call for universal coverage.

Meanwhile, under the rules of the current Senate debate, all Senators are permitted to offer amendments to the ACA repeal bill. Expect Sanders or another progressive Senator to offer Medicare for All or some other version of universal coverage during the vote-a-rama phase of the current Senate circus.

Will it work? That depends on what "work" means.  

Although there undoubtedly are members of Congress who favor universal coverage, the immediate goal of the floor amendments is to put Republicans on record as voting against it. That may be an important political goal. It may even ultimately advance the cause of universal coverage if, as a result of voting against universal coverage, some Republican House members and Senators lose their seats. But the long run is pretty far off.

Why? Because of the converse of the endowment effect. If we already had universal coverage and the Republicans were trying to take it away—even to get us to the level of coverage we currently have—the move would be extremely unpopular. But because we don't currently have universal coverage, the failure to enact it does not trigger the same resistance as its repeal would.

Nonetheless, over the last several months, some progressives (and even conservatives ) have argued that a shift in the the terms of debate will lead to universal coverage.

Freedom Caucusing libertarians and their supporters in the punditocracy want to repeal the ACA because they believe that health insurance should be unregulated and thus be provided—or not—like any other good or service, through the magic of the free market.

However, because most Americans are not health-insurance libertarians the GOP's anti-ACA talking points over the last seven years have not made the libertarian argument. Instead, Republican politicians have criticized Obamacare on the ground that premiums and deductibles are too high—tacitly but unmistakably accepting the progressive view that everyone ought to have health insurance.

Much of the rhetoric has been dishonest or obfuscatory, with Republicans touting "access" to health insurance as a way to mislead people into thinking that they will provide actual coverage as opposed to the theoretical possibility of purchasing an unaffordable policy.

But hypocrisy being the tribute vice pays to virtue, dishonest GOP anti-Obamacare agitprop is a tribute to universal coverage.

That said, don't count on mere logic to lead to universal coverage, despite the sheer illogic of our current care system. The main components of our civilian health care system are: Medicare for the old; Medicaid for the poor; the VA for veterans; employer-based health insurance for the reasonably well employed; the individual marketplace for others with some means; and the tender mercies of ER doctors, bankruptcy judges, and undertakers for the uninsured.

No rational person would have designed this "system," and none did. It arose piecemeal. Yet path-dependence is a powerful force that can give rise to long-lived arrangements.

Does it make any sense that one branch of our military—the Air Force—operates planes that launch from land, while another branch—the Navy—operates planes that launch from aircraft carriers?

Or that in a world with technology that integrates across operating environments we maintain five branches of the armed forces (not even counting reserve units separately)?

Yet despite the numerous disadvantages of interbranch rivalry in the military, it persists through a combination of inertia, path-dependence, and the endowment effect. Likewise, the Rube Goldberg quality of our health insurance system will not doom it any time soon.

Ah, but what about the supposed triumph of the principle of universal coverage in the Obamacare repeal debate? That could, I admit, lead to positive change, but not necessarily any time soon. The People can accept a principle even while tolerating the contradiction of that principle in the law and in their lives.

Consider the Declaration's "all men are created equal" coexisting with slavery. True, enshrining that principle in a founding document played some role in the eventual unraveling of slavery, but the unraveling took the better part of a century and a bloody civil war.

If the GOP's tacit acceptance of universal coverage leads to such universal coverage only after a second civil war ending in 2106, I suppose some of our great-grandchildren and great-great-grandchildren will look upon that result as a victory, but it is hardly cause for celebration now.

The bottom line is simple enough: If you favor universal coverage because you think (as, it should be obvious, I think) that it is among the package of minimal services that a prosperous society should offer its People as a matter of basic decency, don't count on the hidden (if unassailable) logic of Republican Senators and House members to deliver it.

Organize, agitate, and vote for representatives who feel as you do.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University

Technical Postscript: In the foregoing, I have used the term "endowment effect" somewhat loosely. In the leading studies, the endowment effect was shown to apply to anything one had in one's possession, even for just a short time. (The pen/mug experiment of Kahneman, Knetsch, and Thaler is most frequently cited.) Political economy reinforces the psychological phenomenon by creating constituencies that contest the removal of a benefit more strongly than they might lobby for the creation of one.