What we Think when we Love Health-Care Reform, or Hate It.

Ken Karst, my constitutional-law professor, said there are only two principles of constitutional law. The first one is "Oh come on!" The second one is "Oh no you don’t!" Alright, I think his tongue was in his cheek.

But I think of Professor Karst when I think of the battle in the courts about health-care reform. There’s a lot of hullabaloo about constitutional originalism, and the Commerce Clause. Federal judges who have issued decisions on health-care reform are divided. I think it comes down to "Oh come on" versus "Oh no you don’t".

And let me go further. I think that, in the health-care-reform debate, a judge chooses "Oh come on" versus "Oh no you don’t" according to his or her relative affinity to two other principles.

Those principles are love-your-neighbor and social Darwinism.

I’ll explain that, but first let’s look at the issue that’s getting batted back and forth in federal courts. It’s the same issue that pundits argue about on television, and that people debate about on Facebook.

When people complain about the health-care reform (and if they haven’t drunk the death-panels Kool-Aid) they complain about the mandate to buy insurance. They complain that government has no right to make people buy health insurance.

The unpopular health-insurance mandate is necessary to carry out the most popular part of health-insurance reform: ensuring coverage for people with pre-existing conditions. A young woman growing up might have a weak heart. But she can’t stay on her parents’ health plan forever, and she won’t be able to get her own health insurance with her weak heart. Insurance companies ruthlessly screen out prospective customers who actually need health care. Health-care consumers are expensive. Healthy people are profitable for health-insurance companies. So, under current practice, health insurance is sold only to the healthy.

To combat the plight of this woman with the weak heart, and countless persons like her, the new law won’t let health-insurance companies deny coverage because of pre-existing conditions.

But, standing alone, that’s a prescription for abuse. Because if you could get health insurance any time you wanted it, even if you waited until you were sick, then nobody would buy it when they were healthy. Only sick people would buy insurance. And because everybody in the system was sick, it would be hugely expensive – not really "insurance" at all.

So the insurance mandate is necessary to keep people from gaming the system. It keeps health-insurance affordable and available to people with pre-existing conditions.

To be clear: without the insurance mandate, you can’t fairly require health-insurance companies to take in people with pre-existing conditions. It wouldn’t work.

So the insurance mandate is necessary so that people with pre-existing conditions can get health insurance.

Now, you can take two approaches to this. You can say, "The government has no right to make me buy health insurance." And, basically, that casts adrift people with pre-existing conditions. "That’s not my problem", you say. Fair enough. Lots of people agree with you. But let’s call that what it is: social Darwinism. Every man for himself. The smart and strong and rich and healthy survive. The weaklings – for example, the woman with the weak heart – they die. "And good riddance" you might say.

Here’s the opposite approach. You might not like to buy health insurance. But you do a lot of things only because you live in a cooperative society. You stop at red lights, even if you’re in a hurry. You contribute to the common defense and to infrastructure when you pay taxes, even though you might want to buy a big-screen TV instead. You serve on jury duty, even though you might be busy at work. You do these things because the benefits of living in a cooperative society outweigh the benefits of doing your own thing in an every-man-for-himself "society".

Politics is largely occupied with calibrating the balance between cooperative society and every-man-for-himself. This calibration is fundamental to the health-insurance-reform debate.

Even though you might not want health insurance, you get value for your money. It provides a good service that you might need. And by agreeing to take on this unwanted benefit, you are ensuring that people with preexisting conditions can have affordable health care. You are saving lives. You are loving your neighbor.

So: social Darwinism versus love-your-neighbor.

Some will say: This is an oversimplification. I answer: You’re right. But I think it’s a useful oversimplification. I think it approaches truth. I think that a social-Darwinist every-man-for-himself philosophy swirls in the psyche of every opponent of health-care reform.

Even Christians. Especially Christians. I’m not sentimental or naive about church-goers. The parable of the tares and the wheat (Matthew 13:24-43), to me, doesn’t just speak to the difference between two people sitting next to each other at the counter of a café. It’s also about two people sitting next to each other on the pew of a church. Here’s how far I go: it’s even about two ideas reposing in the mind of a Christian.

Examine your mind. See if there isn’t some social Darwinism every-man-for-himself in there. If there is, decide if you want it there. When I examine myself, I find it. In my best on-Earth-as-it-is-in-Heaven way, I try to correct it. Imperfectly. Very imperfectly. But then, on my better days, I’m pretty unimpressed with my own morality. On my better days.

If you oppose health-care reform, decide if you really think that your freedom not to buy health insurance is more important to you than the health of somebody who can’t get insurance because of a pre-existing condition.

It’s your money, but it’s his or her life.