Don't Need A Bill Of Rights, But A Menu Of Choices Tailored To Their Needs

By Brad Lega

In the ongoing Congressional debate, supporters of a Patient's Bill of Rights automatically assume the existence of a "right" to healthcare.

On the face of it, this sounds reasonable: who would deny Americans the right to good health? Supporters of the doomed Clinton healthcare reform in 1994 liked to point out that all European nations acknowledge their citizens have a "right" to health care. And such a "right" is even found in the UN charter.

Yet we should be wary before embracing the Europeans' concept of ideal healthcare. The word "right" implies something absolute, something that trumps other claims in order to fulfill a kind of moral obligation.

Americans already have rights associated with healthcare: the right to pursue the kind of care we want. For instance, a Jehovah's Witness whose religion bars blood transfusions has the right to refuse them. And a Catholic woman has the right to forego birth control pills.

Such rights are unquestioned, but they differ markedly from what socialists in Europe and many liberal Americans regard as a "fundamental right to healthcare."

That view demands large-scale entitlement programs that guarantee care for all citizens, and at the same time diminish the rights of many Americans, who take care of their health and prefer not to pay higher taxes to subsidize those who don't.

Make no mistake. The negative consequences of national healthcare can be significant: payroll taxes that top 40 percent, long waiting lists for many procedures, and a stifling of research and development.

In Canada, a nationally defined "right" to healthcare eliminates a patient's right to freely contract with a doctor. Canadians, stuck on endless waiting lists for routine surgeries, flock across the border to American doctors.

Yet many supporters of the Patient's Bill of Rights such as Sen. Paul Wellstone (D-MN), view it as a interim step toward a Canadian-style single payer system that would grant universal, equal access healthcare to all citizens -- no matter what the cost and or restrictions on choice.

The much bally-hooed "right" to sue an HMO bandied about in the current debate demonstrates the same tactic.

It overlooks the fact that patients already can sue their HMO. Right now, grievances against HMOs are handled like contract disputes. If an insurance company initially agrees to cover a treatment and then reneges, patients can sue to enforce the contract of their insurance plan.

The so-called McCain-Kennedy bill extends the patients' right to sue much further by including economic losses and punitive damages associated with any claims. Essentially, the bill shifts the cases from contract law to tort law. It changes health care from a freely contracted service to a right that must be upheld regardless of the cost.

But someone must pay the piper for the multi-million judgments that will start to flow when mercenary personal injury lawyers get involved. That someone will be insured patients who watch their premiums rise dramatically to cover the cost of new rounds of litigation.

As premiums rise, patients will drop their healthcare coverage, swelling the ranks of the uninsured and increasing the clamor for single-payer, national healthcare.

Indeed, a recent report by the Economic and Social Research Institute (ESRI) called "Covering America: Real Remedies for the Uninsured" includes eleven remedies. All but three of them rely on increased payroll taxes or general revenues to finance a large public system that would provide extensive services to those without coverage.

The ESRI's Judith Feder candidly suggests that healthcare "needs to be an entitlement program" extending the comprehensive benefits of Medicaid to anyone earning less than two times the poverty level. Higher payroll taxes would subsidize the purchase of coverage for people earning between two and three times the poverty level.

Yet there are viable alternatives to such a statist approach.

Author John C. Goodman in his recent report "Reforming the U.S. Health Care System," suggests extending the same tax credits employers now receive for their contribution to employees' health plans to individuals, who could then use them to purchase their own private insurance.

The current system distorts the market and forces Americans to find insurance through employers. Extending the tax credits to individuals would allow them to custom-tailor their healthcare coverage to their perceived needs. Those who chose to remain uninsured would receive healthcare through a limited public safety net.

Goodman's plan would open the door to universal healthcare coverage in a more rational way. Of course, neither the lowest cost private insurance plans nor the publicly subsidized safety net would provide expensive, elaborate care. Benefits almost certainly would not include the right to see a specialist, or the right to any and all prescription drugs.

But it would give Americans' the best of all possible healthcare choices, the right to buy as much -- or as little -- healthcare as their individual circumstances warranted. The plan would give our healthcare delivery system an advantage it does not have now: a "virtual sensitivity" toward market responses as they occurred -- enabling it to cut costs and vastly improve quality.

At some point in the near future, Congress should seriously consider the Goodman plan.