Note: On Thursday morning, the Supreme Court upheld President Obama’s health care law in a 5-4 decision. The logic is based on complicated legal tax processes, but underneath it all is a philosophical question. Earlier this week, Zack Beauchamp reflected on the moral implications of this crucial case.
It is known that the Supreme Court will be deciding the health care case on Thursday. The issue hinges on a purported distinction between “activity,” which the challenge to law says government can reasonably regulate under the Commerce Clause, and inactivity, which it purportedly can’t. I’ll leave it to the lawyers to say whether that distinction has deep roots in the relevant constitutional law (though I have my doubts). But there’s a second, related question – whether or not there’s any meaningful conceptual or moral difference between acting and not acting. That’s a point on which the Jewish tradition has some very insightful things to say, and they’re not particularly favorable to the anti-Obamacare cause.
But isn’t the distinction between not doing something and doing something obvious? Or, as lead anti-mandate advocate Randy Barnett puts it, “one would quite literally have to be deranged not to recognize the difference between acting and failing to act.” This sort of argument misses the point. The question is whether that intuitively obvious difference is actually a real one or simply something that seems clearly true but fails to stand up to critical scrutiny. Sometimes things that seem obvious turn out to be wrong.
Indeed, the activity/inactivity distinction hasn’t been super clear in the Jewish legal tradition. The traditional halachic interpretation of pikuach nefesh (literally, saving a life) has held that Jews have a moral obligation to help those in dire need, and that so-called inactivity in those cases is simply a form of immoral action. A key scriptural basis for this interpretation is in Leviticus 19:16, which states that thou shalt not:
Stand idly by the blood of thy neighbor.
The phrasing there is particularly telling. “Standing idly by” is, clearly, an action – that is, one is making an active choice to pursue a particular course of behavior. When one chooses to, for example, ignore a child drowning in a lake, one doesn’t just cease to act when the child is dying – one consciously decides to take another course of actions (walk away, think about sunsets, and so on). Indeed, this is why halacha traditionally recognizes so-called inaction in the face of suffering as a serious moral breach:
It would be misleading, therefore, to interpret the lack of judicial punishment in Jewish law for the innocent bystander who fails in his duty to come to the rescue of his fellow man in distress as indicating that the duty is merely moral. Rather Jewish law views such failure as nonfeasance, a formal offense of inaction (delictum mere omissivum) where action is a duty required by law.
The recognition that inaction is a itself a kind of active choice, as opposed to simply a neutral pose, is telling. It suggests that, while Jewish law may make practical concessions to the activity/inactivity suggestion in the same way that American law doesn’t punish people who don’t feed the starving as murderers, halacha rightly implies that there is no in principle distinction between choosing to act in a case and choosing not to act. Both are active decisions by a person, and hence both equally subject to the same sets of moral judgments. Inactivity is simply a certain sort of activity, not a metaphysically separate category. I’ve made this sort of argument before.
Recognizing that inactivity is a form of activity really matters for the health care case. The mandate is meant to deal with the fact that healthy people will make a choice not to get insurance until they’re sick given new Obamacare regulations, which badly screws up the market for insurance for everyone else. Their choice not to get health insurance and spend their money on other things is a decision that has consequences for other people. Put differently, the choice to take an alternative course of action (misleadingly labelled inactivity) has serious consequences for others. It’s hard to say what, morally speaking, separates this action from others without invoking a metaphysically arbitrary distinction.
Of course, Jewish law is not American law (nor, obviously, should it be), and the Court makes rulings on legal grounds, not philosophical ones. But if five justices do choose to strike down the individual mandate, we should recognize that it’d be based on a distinction of convenience rather than of deep principle.