Can compulsory health insurance be justified? An examination of Taiwan's National Health Insurance.

AuthorWu, Chuan-Feng
PositionI. Introduction through V. Step 1: Examine Human Rights Burdens of the Compulsory NHI B. Individual Autonomy, p. 51-75
  1. INTRODUCTION II. TAIWAN'S NATIONAL HEALTH INSURANCE (NHI) A. Background B. Debates on the Constitutionality of the Compulsory NHI III. THE SIGNIFICANCE OF THE FREEDOM TO PURCHASE OR DECLINE HEALTH INSURANCE IV. HUMAN RIGHTS IMPACT ASSESSMENT FOR THE COMPULSORY NHI V. STEP 1: EXAMINE HUMAN RIGHTS BURDENS OF THE COMPULSORY NHI A. Taiwanese Constitution B. Individual Autonomy C. Moral Powers D. Historical Development VI. STEP 2: CLARIFY THE POLICY PURPOSES OF THE COMPULSORY NHI VII. STEP 3: EVALUATE THE EFFECTIVENESS OF THE COMPULSORY NHI VIII. STEP 4: ASSESS TRADE-OFF RELATIONSHIPS IN COMPULSORY NHI (IMPORTANCE TEST) A. The Importance Test B. The Importance Test Revisited C. The Importance for the Individual Mandate without Insurance Package Option (Taiwan's Case) 1. The Compulsory NHI's Impacts on Moral Powers 2. Trade-off under the Compulsory NHI D. Importance Test for Individual Mandate with Insurance Package Options IX. CONCLUSION I. INTRODUCTION

    In March 2010, U.S. Congress's enactment of a comprehensive health care reform bill, the Patient Protection and Affordable Care Act, (1) along with the Health Care & Education Affordability Reconciliation Bill of 2010 (2) (collectively referred to herein as the "Health Care Reform Act"), adopted the "individual mandate," a requirement that every American possess a certain level of health insurance (3) through which universal access to health care can be achieved. (4) The individual mandate no doubt is the most important yet most controversial linchpin of the U.S. Health Care Reform Act. The mandate drew scrutiny regarding its constitutionality because a direct and unconditional requirement for an individual to transfer money to one or more health insurance programs (5) for health or economic purposes seems to violate individual liberties (or individual autonomy), (6) especially the "disenrollment freedom" (the freedom to refuse to enroll in a health care program). (7) still today, there is much disagreement about whether the individual mandate could be considered justified as "regulating" individual liberties.

    Therefore, a systematic examination of Taiwan's health care reform, which is a single-payer system based upon regulated competition but has a compulsory scheme that contains a mandate, might interest u.s. policymakers and scholars who either support or oppose universal coverage. First, similar to the new U.S. Health Care Reform Act, (8) Taiwan's National Health Insurance (NHI) also requires all citizens to subscribe to health insurance. (9) Basically, all residents are required to subscribe to the public mandatory health insurance (10) or are subject to a fine of no less than NT$3,000 (about US $94.25) and no more than NT$15,000 (about US $471.25). (11) Second, similarly to the u.s., Taiwan also faced intense debate about the constitutionality and morality of the individual mandate when the NHI was launched in 1995. (12)

    No doubt, Taiwan's NHI system seems to satisfy most citizens' needs because the participation rate (otherwise known as the enrollment rate or coverage rate) is high, (13) and public satisfaction with the NHI has always been high since its inception in 1995. (14) In addition, the system also has one of the lowest administrative costs in the world (15) and still maintains a relatively high perception of quality (16) by using proper regulations and monitoring mechanisms. (17) However, Taiwan's Grand Justices Council (the Constitutional Court) expressed concerns about the constitutionality of compulsory national health insurance because the individual mandate would significantly deprive individuals from freely allocating their resources and from choosing their own insurance. (18) Therefore, even though the Court agreed that compulsory subscription of health insurance conforms to the constitutional purposes of "improving national health" (19) and "promoting national health insurance," (20) it nonetheless required authorities to "conduct at [the] appropriate time [a] full-range evaluation and implement improvement measures in aspects of the insurance operations [i.e., regulated competition,] including diversification of the insurers." (21) In other words, the Court implied that the individual mandate might be constitutionally justified, (22) while the individual mandate for regulated competition might not be justified. (23)

    In the U.S., individual liberty is also central to the health care reform debate and has generated constitutional challenges. (24) Constitutional challenges to the individual mandate came also from other perspectives, such as limits on federalism, (25) taxation and spending powers, (26) religious objections, (27) due process, (28) and under the Commerce Clause. (29) Scholars across political and philosophical spectrums propose different theories to defy or to defend the individual mandate. (30) Further, a segment of American society still believes that the individual mandate threatens the very fabric of America's cherished liberties (31) and is "liberty-crushing" by invading the area of individual autonomy. (32) Thus, a growing list of states filed legal challenges to the U.S. Health Care Reform Act (33) based on the constitutional legitimacy of the individual mandate. (34) on the other hand, justifications for the individual mandate have also been explored. (35) For example, Edward Lee argues that universal access to health care requires more than just the market-based distribution of health insurance, (36) and that one essential component of universal access is requiring each citizen to enroll in the same or similar health insurance program. (37) Jack Balkin argues that if the tax system is constitutional, the individual mandate should be as well, because both act as incentives to engage citizens in socially desirable behavior (e.g., to purchase health insurance) and to reduce the costs of government programs. (38) on fairness grounds, Norman Daniels (39) agrees that "mandatory coverage and participation" should be the first criterion of a universal health care system, (40) even when coercing people into participation might violate certain liberties. (41) He argues that a universal health care system is moral (42) because society would fail to protect fair equality of opportunity if people have no universal access to an appropriate array of medical resources regardless of their individual ability to pay. (43) Furthermore, since health care, which protects fair equality of opportunity, is extremely important, "the obligation to contribute to its support is more important than any supposed liberty not to." (44)

    Since a great paradox lies beneath the universal health insurance mandate debate in both Taiwan and the U.S., Taiwan's experience clarifying the constitutionality of its compulsory universal health insurance program then might provide valuable lessons to the U.S. The goal of this Article is to provide a theoretical basis, based upon the human rights impact assessment in public health policies (45) and a Rawlsian theory of justice, to decide whether the restriction on individual liberty imposed by Taiwan's compulsory NHI is constitutionally justified. An analytic four-step assessment is established to evaluate the NHI's burden on individual liberties: (1) examine the importance, legitimacy, and contents of the freedom to purchase or decline health insurance in social health programs, (2) clarify the NHI's proposed policy purposes, (3) evaluate likely policy effectiveness, and (4) apply the "importance test," based upon Rawls' liberty and priority principles, to assess the trade-offs between the restricted liberty and the...

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