Patients’ Bill: Liberalism a la Mode

A patients’ bill of rights is the perfect piece of legislation for our time. Is that good?

A massive new regulatory system, imposed on one of the country’s biggest industries, health care? Supported in theory--with quibbling over details--by the Republican president and Republican congressional leadership? It seems to me that even the GOP version is an impressive piece of meddling in the free market. But even if, as some say, the bill backed by President Bush is all empty pretense, the fact that he feels obliged to pretend to favor a patients’ bill of rights suggests that the atmosphere right now is pretty liberal.

GOP complaints about the Democratic bill are limited to the issue of lawsuits. It’s hilarious--and, I suppose, inspiring--that no major Republican is out there saying, “No.” This violates my most basic free-market principles. Insurers should be free to offer any deal they want and consumers should be free to take it or leave it. On the other hand, look at what this bill is about.

The No. 1 priority of the new Senate Democratic leadership, floating on a sea of rhetoric about resurgent liberalism and a renewed appreciation for the government’s role in helping people, is about marginal improvements for people who already have health insurance. It not only ignores but actually thumbs its nose at what is obviously the biggest gap in the social safety net, the millions of people with no health insurance at all.

What’s striking is not just the modesty of this ambition but its direction. It’s aimed at the problems of the majority, not at the more serious problems of a smaller group. Social welfare schemes used to be salable to the majority on a sort of psychic insurance: I may not have this problem, I may not worry that I may some day have this problem, but at least it could have been me having this problem.

Today a new government program, if it’s going to get anywhere, has to scratch the majority right where it itches at the moment. In this and several other ways, the patients’ bill of rights represents liberalism a la mode, which is one way of characterizing the dominant politics of our current period.

For example, the patients’ bill is aimed at a particular kind of majority, what might be called a “grandfather clause” majority. Guaranteeing that people who already have some benefit don’t lose it is a big theme of liberalism a la mode. President Clinton’s health care plan, which was not a la mode, foundered on the issue of whether people would be allowed to keep the same doctor. The later Kennedy-Kassebaum law allegedly guarantees that once you have insurance, you can’t be cut off.

One nice thing about liberalism a la mode is that it’s free--or rather, the cost is hidden. The idea of people agreeing to be taxed in order to finance some benefit, even for themselves, remains utterly out of fashion. There are many ways to make it all look like a freebie, though. Bush, in his budget and in his Social Security scheme, favors straightforward accounting tricks. The patients’ bill achieves its goals through regulation rather than tax-and-spend. Nobody denies that the cost of these new benefits ultimately will hit the beneficiaries in the form of higher insurance premiums. But nobody who supports the bill plays this up, either.

There’s also an a la mode way to impose rules on the private economy while avoiding the big-government stigma. That way is called lawyers. Republicans charge that Democrats are in the pocket of the Trial Lawyers Assn., and it’s true. But there also are strategic and even philosophical reasons why proposals like the patients’ bill of rights rely on lawsuits to do their dirty work. Strategically, this protects you against being portrayed as the hobnailed boot of big government crashing down on individual freedom. Philosophically, it frames the issue in terms of individual rights, which is very American, rather than standards imposed by society, which is not.

The downside of this approach includes the enormous, though hidden, cost of litigation (lawyers, punitive damages), the inconsistent standards of judge-made law as opposed to uniform rules, and a misplaced emphasis on justice in individual transactions over justice in general. Your HMO can’t screw you if you don’t have an HMO.

Liberalism a la mode is flawed for all these reasons. But still, it’s better than nothing.