PORTLAND – If there’s one thing that opponents hate most about federal health care reform, it’s that Americans will be required to obtain health insurance or else pay a penalty. They denounce this mandate as totally unprecedented.
That’s nonsense. State and local governments across the country already require Americans to buy things that are good for them and their communities. With the presidential campaign heating up and the Supreme Court preparing to review health care reform, it’s time to show mandates some appreciation for being, well, precedented, with an impressive record of spreading costs and risks to make us all better off.
Hundreds of local governments require individuals to buy specific and expensive bags for collection of their nonrecyclable trash. The formula is simple: No bag; no trash pickup.
The bag purchase requirement is an individual mandate. It provides incentives for recycling, reducing solid waste and saving governments (and taxpayers) money. Government at the local level is forcing people to buy a product from a private seller. Can individuals opt out? Sure — if they produce no trash or recycle everything. Anyone who produces trash — in other words, everyone — is covered by the mandate.
The trash bag incentive works. It has reduced solid waste, increased recycling and lowered costs. The mandate shows how government can develop innovative solutions to collective problems.
This is an issue of access to something essential for us all — affordable medical care — not an abstract battle to amuse lawyers and politicians. If the anti-mandate crowd succeeds, we will be back to the tattered patchwork, full of holes and hardships, that led Congress to pass the reform legislation in 2010.
Other overlooked precedents, on a larger scale, are state laws requiring drivers to buy automobile insurance. Almost half the states require every driver to buy insurance to protect himself against the risk that he will be injured by an uninsured driver. Four states require drivers to buy extra insurance to cover the risk that they or their passengers will incur medical expenses from any sort of accident. And 49 states make drivers buy insurance covering the risk that they will injure others through their own carelessness. States do not let drivers opt out of the insurance program.
Instead, states require drivers to buy products they may not want from private companies to insure against risks they might prefer to bear themselves. As with health insurance, the idea is that the costs and risks of this activity need to be shared across a broad pool.
But wait, critics say, driving is a choice and people can opt out of the insurance mandate by simply not driving. Yet individuals cannot opt out of the health insurance mandate. “Choice,” however, is an illusory idea because driving is simply not optional for millions of Americans. The only way many can get to work, school, the doctor or the grocery store is to drive. On any given day, more than two-thirds of Americans 15 and older are behind the wheel of a car.
From federal highway funding to local zoning laws, government at all levels has encouraged and subsidized driving. The fact that all states have a law that guarantees insurance coverage is available for even risky drivers underscores the reality and the government’s recognition that driving is a necessity and not a choice for most Americans.
The auto insurance industry resisted mandates for decades, through lobbying and lawsuits. The 1951 Supreme Court case of California State Auto Ins. Ass’n Inter-Insurance Bureau v. Maloney rejected their claim that certain mandates were unconstitutional. The industry has more than adjusted; auto insurance is a highly successful and competitive industry, with more than 2,500 companies selling policies.
The auto mandates, even those requiring people to buy insurance that protects them rather than others, are a reasonable way of sharing and spreading the costs and risks of driving, which is a vital part of our economy and most of our lives.
The Heritage Foundation, now a critic of the health insurance mandate, in 1989 trumpeted the idea of an individual mandate to broaden coverage, promote individual responsibility and foster private competition. It favorably cited auto insurance mandates as relevant precedent for a health insurance mandate. Similarly, Gov. Mitt Romney touted auto insurance mandates as the model for Massachusetts’ first-in-the-nation 2006 mandatory health insurance law. In turn, the federal individual mandate was modeled on the Massachusetts law.
Both Massachusetts and the federal government recognized that automobile insurance laws show how individual insurance mandates, besides broadening the risk pool so that risks are widely shared, can lead to competition, innovation and other benefits to consumers.
Like auto insurance and those pesky trash bags, the individual mandate creatively addresses social and economic problems that have long defied other solutions and that stand to endanger all of us if not addressed.
Jennifer Wriggins is a professor at the University of Maine School of Law.