“A nation’s liberties seem to depend upon headier and heartier attributes than the liberty to die without medical care.” ~Milton Mayer, “The Dogged Retreat of the Doctors” (1949)
Conservative supreme court justices who voice grave skepticism about the constitutionality of the Patient Protection and Affordable Care Act of 2010 would have been better suited to judicial service in the decades following the Revolutionary War. Issues of health, illness, freedom, and tyranny were much simpler then. Liberty, as understood by our founding fathers, operated only in the interlacing realms of politics and religion. How could it have been otherwise? Medical intervention did not affect the course of illness; it did not enable people to feel better and live longer and more productive lives. With the exception of smallpox inoculation, which George Washington made mandatory among colonial troops in the winter of 1777, governmental intrusion into the health of its citizenry was nonexistent, even nonsensical.
Until roughly the eighth decade of the nineteenth century, you got sick, you recovered (often despite doctoring), you lingered on in sickness, or you died. Antebellum (pre-Civil War) medicine relied on a variation of Galenic medicine developed in the eighteenth century by the Scottish physician John Cullen and his student John Brown. According to Cullen’s system, all diseases were really variations of a single disease that consisted of too much tension or excitability (and secondarily too little tension or excitability) in the blood vessels. Revolutionary-era and antebellum physicians sought to restore a natural balance by giving “overstimulated” patients (read: feverish, agitated, pain-ridden patients) large doses of toxic mercury compounds like calomel to induce diarrhea; emetics like ipecac and tobacco to induce vomiting; and by bleeding patients to the point of fainting (i.e., syncope). It was not a pretty business.
Antebellum Americans did not have to worry about remedies for specific illnesses. Except for smallpox vaccine and antimalarial cinchona tree bark (from which quinine was isolated in 1820), none existed. Nor did they have to worry about long-term medical interventions for chronic conditions – bacterial infections, especially those that came in epidemic waves every two or three years, had no more opportunity to become chronic than diabetes, heart disease, or cancer.
Medical liberty, enshrined during the Jacksonian era, meant being free to pick and choose your doctor without any state interference. So liberty-loving Americans picked and chose among calomel-dosing, bloodletting-to-syncope “regulars,” homeopaths, herbalists, botanical practitioners (Thomsonians), eclectics, hydropaths, phrenologists, Christian Scientists, folk healers, and faith healers. State legislatures stood on the sidelines and applauded this instantiation of pure democracy. By midcentury, 15 states had rescinded medical licensing laws; the rest gutted their laws and left them unenforced. Americans were free to enjoy medical anarchy.
Now, mercifully, our notion of liberty has been reconfigured by two centuries of medical progress. We don’t just get sick and die. We get sick and get medical help, and, mirabile dictu, the help actually helps. In antebellum America, deaths of young people under 20 accounted for half the national death rate. Now our children don’t die of small pox, cholera, yellow fever, dysentery, typhoid, and pulmonary and respiratory infections before they reach maturity. Diphtheria no longer stalks them during the warm summer months. When they get sick in early life, their parents take them to the doctor and they almost always get better. Their parents, on the other hand, especially after reaching middle age, don’t always get better. So they get ongoing medical attention to help them live longer and more comfortably with chronic conditions like diabetes, coronary heart disease, inflammatory bowel disease, Parkinson’s, and many forms of cancer.
When our framers drafted the Constitution, the idea of being free to live a productive and relatively comfortable life with long-term illness didn’t compute. You died from diabetes, cancer, bowel obstruction, neurodegenerative disease, and any major infection (including, among young women, the infection that often followed childbirth). A major heart attack usually killed you. You didn’t receive dialysis and possibly a kidney transplant when you entered kidney failure. Major surgery, performed on the kitchen table if you were of means or in a bacteria-infested, dimly lit, unventilated public hospital if you weren’t, was all but nonexistent because it invariably resulted in massive blood loss, infection, and death.
So, yes, our framers intended our citizenry to be free of government interference, including an obligatory mandate to subsidize health care for millions of uninsured and underserved Americans. But then the framers never envisioned a world in which freedom could be safeguarded and extended by access to expert care that relieved suffering, effected cure, and prolonged life. Nor could they envision the progressive income tax, compulsory vaccination, publicly supported clinics, mass screening for TB, diabetes, and syphilis, and Medicare. Throughout the antebellum era, when regular physicians were reviled by the public and when neither regulars nor “alternative” practitioners could stem the periodic waves of cholera, yellow fever, and malaria that decimated local populations, it mattered little who provided one’s doctoring. Many, like the thousands who paid $20.00 for the right to practice Samuel Thomson’s do-it-yourself botanical system, chose to doctor themselves.
Opponents of the Affordable Care Act seem challenged by the very idea of progress. Their consideration of liberty invokes an eighteenth-century political frame of reference to deprive Americans of a kind of liberty associated with a paradigm-shift that arose in the 1880s and 1890s. It was only then that American medicine began its transition to what we think of as modern medicine. Listerian antisepsis (and then asepsis); laboratory research in bacteriology, immunology, and pharmacology; laboratory development of specific remedies for specific illnesses; implementation of public health measures informed by bacteriology; modern medical education beginning with the opening of Johns Hopkins Medical College in 1893; and, yes, government regulation to safeguard the public from incompetent practitioners and toxic, sometimes fatal, medications – all were all part of the transition.
“We hold these truths to be self-evident,” Jefferson begins the second paragraph of the Declaration of Independence, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” What Jefferson didn’t stipulate – what he couldn’t stipulate in his time and place – was the hierarchical relationship among these rights. Now, in the twenty-first century, we are able to go beyond an eighteenth-century mindset in which “life, liberty, and the pursuit of happiness” functions as a noun phrase whose unitary import derives from the political tyrannies of King George III and the British Parliament. Now we can place life at the base of the pyramid and declare that quality of life is indelibly linked to liberty and the pursuit of happiness. To the extent that quality of life is diminished through disease and dysfunction, liberty and the pursuit of happiness are necessarily compromised. In 2012, health is life; it is life poised to exercise liberty and pursue happiness to the fullest.
Why is it unconstitutional to obligate all citizens to participate in a health plan, either directly or through a mandate, that safeguards the right of people to efficacious health care regardless of their financial circumstances, their employment status, and their preexisting medical conditions? What is it about the term “mandate” that is constitutionally questionable? When you buy a house in this country, you pay local property taxes that support the local public schools. (If you’re a renter, your landlord pays your share of the tax out of your rent.) The property tax functions like the mandate: It has a differential financial impact on people depending on whether they directly benefit from the system sustained by the tax. To wit, you pay the tax whether or not you choose to send your children to the public schools, indeed, whether or not you have children. You are obligated to subsidize the public education of children other than your own because public education, for all its failings, has been declared a public good by the polity of which you are a part.
It is inconceivable that the founding fathers would have found unconstitutional a law that extended life-promoting health care to the roughly 50 million Americans who lack health insurance. The founding fathers declared that citizens – well, white, propertied males, at least – were entitled to life consistent with the demands and entitlements of representative democracy; their pledge, their Declaration, was not in support of a compromised life that limited the ability to fulfill those demands and enjoy those entitlements.
Of course, adult citizens may repudiate mainstream health care on the basis of their own philosophical or religious predilections. Fine. Americans who wish to pursue health outside the medical mainstream or, in the manner of medieval Christians, to disavow corporeal well-being altogether, are free to do so. But they should not be allowed to undermine social and political arrangements, codified in law, that support everyone else’s right to pursue life and happiness through twenty-first century medicine.
The concept of medical freedom dominated the antebellum period and resurfaced during the early twentieth century, when compulsory childhood vaccination and Oklahoma Senator Robert Owen’s proposed legislation to create a federal department of public health spurred the formation of the Anti-Vaccination League of America, the American Medical Liberty League, and the National League for Medical Freedom. According to these groups, medical freedom was incompatible not only with compulsory vaccination, but also with the medical examination of school children, premarital syphilis tests, and municipal campaigns against diphtheria. In the 1910s, failure to detect and treat contagious bacterial disease was a small price to pay for freedom from what medical libertarians derided as “allopathic knowledge.” These last gasps of the Jacksonian impulse were gone by 1930, by which time it was universally accepted that scientific medicine was, well, scientific, and, as such, something more than one medical sect among many.
After World War II, when the American Medical Association mounted its holy crusade against President Harry Truman’s proposal for national health care, “medical liberty” came into vogue once more, though its meaning had changed. In antebellum American and again in the 1910s, it signified freedom to cast off the oppressive weight of “regular” medicine and pick and choose among the many alternative sects. In the late 1940s, it signified freedom from federally funded health care, which would contaminate the sacrosanct doctor-patient relationship. For the underserved, such freedom safeguarded the right to remain untreated. The AMA’s legerdemain elicited ridicule by many, the prominent journalist Milton Mayer among them. “Millions of Americans,” Mayer wrote in Harper’s in 1949, “geographically or economically isolated, now have access to one doctor or none. The AMA would preserve their present freedom of choice.” In 1960, the medical reporter Selig Greenberg mocked medical free choice as a “hoary slogan” based on “the fatuous assumption that shopping around for a doctor without competent guidance and paying him on a piecemeal basis somehow guarantees a close relationship and high-quality medical care.”
Now the very notion of medical freedom has an archaic ring. We no longer seek freedom from the clutches of mainstream medicine; now we seek freedom to avail ourselves of what mainstream medicine has to offer. At this singular moment in history, in a fractionated society represented by a bitterly divided Congress, access to health care will be expanded and safeguarded, however imperfectly, by the Affordable Health Care Act. Those who opt out of the Act should pay a price, because they remain part of a society committed to health as a superordinate value without which liberty and the pursuit of happiness are enfeebled. To argue on about whether the price of nonparticipatory citizenship in the matter of health care can be a tax but not a mandate is obfuscating wordplay. And the health and well-being of we the people should not be a matter of wordplay.
 Milton Mayer, “The Dogged Retreat of the Doctors,” Harper’s Magazine, 199:25-37, 1949, quoted at pp. 32, 35; Silas Greenberg, “The Decline of the Healing Art,” Harper’s Magazine, 221:132-137, 1960, quoted at p. 134.