Timothy Stoltzfus Jost, J.D., holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a coauthor of a casebook, Health Law (West Group Publishing, 2000), used widely throughout the United States in teaching health law, and is the author of numerous articles and books on health law and policy, including Disentitlement? The Threats Facing Our Public Health-Care Programs and a Rights-Based Response (Oxford University Press, 2003).
Joseph J. Kotva, Jr., is director of the Anabaptist Center for Healthcare Ethics at Associated Mennonite Biblical Seminary, Elkhart, Indiana.
Frederic Fransen's "A 'Two Kingdoms' Approach to Health Care" describes an Anabaptist health policy that strikes us as combining radical libertarianism with idealistic communitarianism. That policy vision is based on several historical, political, economic, and theological assumptions that we challenge.
Fransen claims that the Schleitheim Confession is "the core document establishing Anabaptist principles on the relation between Christians and the state," and Fransen correctly notes that Schleitheim confessed a very dim view of the state's potential. However, as Gerald Biesecker-Mast observes in Separation and the Sword in Anabaptist Persuasion: Radical Confessional Rhetoric from Schleitheim to Dordrecht,(1) Schleitheim represented a uniquely antagonistic position among Anabaptist writings addressing the Christian's relationship to the state. Schleitheim adopted this position in response to the violent antagonism of the state to the Swiss-German sixteenth century Anabaptists. Other relatively early Anabaptists saw a more positive role for the state. Menno Simons (1496-1561) called upon the magistrates to "deliver the oppressed out of the hand of the oppressor" and the Dordrecht Confession (1632) recognized the role of the civil government to "govern the world and to provide good regulations and policies in cities and counties." Similarly, Pilgrim Marpeck (died 1556) was a civil engineer working for the government. These examples simply do not confirm the starkly limited, negative view of the state that Fransen, citing Schleitheim, asserts. Indeed, our history even includes friendly princes welcoming Anabaptists because of their skills in contributing to public works projects. In short, our tradition has from the beginning exhibited far richer, more diverse understandings of "Two Kingdoms" and the role of the state than Fransen allows.
We also wonder if Fransen has a robust enough understanding of the Lordship of Christ. Following John H. Yoder, we would argue that the New Testament proclamation that "Jesus is Lord" is true for the entire cosmos, not just the church. The church already confesses the yet-unknown-to-the-world reality of Christ's Lordship, but Christ is Lord now over all, including the state (cf. Acts 10:36; Ephesians 3:9-10; Philippians 2:9-11; Colossians 1:16-20). The Lordship of Christ does not mean that the state is redeemed nor does it make us optimistic regarding the state's actually moral functioning. However, Christ's Lordship does provide grounds for addressing government and for asking that the state at least live up to its own moral claims - for example, claims to benevolent regard for the poor.(2) Simply put, an adequate theology of the Lordship of Christ authorizes us to speak to and expect more from government than Fransen's article suggests.
Fransen believes that Anabaptist "Two Kingdoms" thinking, as well as a proper understanding of "post-modern ethics," leads us to the radical libertarianism of Robert Nozick, at least with respect to health care. Fransen's own development of this view rests on numerous, debatable value judgments and factual assumptions. For example, Fransen simply accepts without comment the current distribution of private property. Fransen here parallels Nozick, who builds his understanding of just exchange on the assumption that existing property relationships (along with other unequal, already existing relationships of power) do not themselves need to be justified or challenged.
The problem is that Fransen does not explain why biblically-minded Anabaptists should accede to this historically particular, individualistic, and philosophically "liberal" understanding of property. Indeed, Fransen's assumption about property distribution strikes us as manifestly contrary to biblical understandings of justice. Biblical justice is preoccupied with the needs of those who are poor, weak, disadvantaged, or oppressed (e.g., Deut. 24:17; Ps. 10:17-18; Is. 10:1-2; Jer. 5:28; Lk. 4:18-19). In a biblical context, need and powerlessness are the most basic criteria for the distribution of benefits, which inevitably ends up challenging existing property relationships. Thus, the Old Testament notion of jubilee presumes that property needs periodic redistribution (Leviticus 25:8-12), and New Testament judgments on the rich assume that existing inequalities of wealth are symptomatic of something deeply problematic (e.g., Luke 1:52-53; 6:24-25; James 5:1-6). In a world where a small minority controls the vast majority of resources, why should Anabaptists accept without argument Fransen's understanding of existing property rights?
Fransen's description of "post-modern ethics" is also open to challenge. Many theologians and philosophers now realize that everyone speaks from a historically particular, non-universal tradition and language. Many likewise recognize that a community's language and moral convictions are not readily interchangeable, or even translatable, with those of another community. These realizations do not, however, necessitate the kind of insular communities that Fransen seems to endorse. Authors such as Jeffrey Stout, Alastair MacIntyre, Stanley Hauerwas, and John Howard Yoder argue that communication and understanding across moral communities is indeed possible. Such communication takes hard work and moral imagination. The shared terms and convictions upon which we build a conversation with one community may necessarily differ from the terms and convictions upon which we build conversation with another community. While such communication and mutual understanding is difficult to achieve, there is no reason to accept Fransen's description of "post-modern" ethics as resulting in a radical pluralism that eschews seeking common goods and shared ends.
Another problem is evident in Fransen's assumption that private markets are efficient for distributing health care goods and services, while third party payment for health care is inefficient. As questions of fact, these are dubious assumptions. Health economists and policy experts across the political spectrum recognize that information deficits (consumers can have only a limited understanding of what is the best way to deal with their health problems), externalities (my decision not to be vaccinated may affect, or infect, you), and agency problems (doctors, not patients make most important decisions) make classical economic theory a poor fit for health care, though they disagree as to how poorly markets work. Criticism of third party payment is currently fashionable, but most health economists and policy experts also recognize that it plays an essential role.
Anyone designing a system for financing health care must deal with multiple issues, including: (1) Health care costs are incredibly skewed. A small proportion (approximately 10%) account for a very high proportion of costs (approximately 70%); (2) Many people in a population cannot afford health care - do not have the resources to participate in markets - or even afford health insurance.
The first of these issues is addressed by insurance. At one time we did allocate health care through markets and through charities (as Fransen wishes we still did). That approach failed. We have insurance in this country, not initially because of government policy, but because consumers, beginning in the 1930s, demanded it, recognizing that markets for direct purchase of health care were not working. The second issue, the problem of affordability, is addressed by every country in the developed world through public insurance. The United States established two public insurance programsMedicare and Medicaidin the 1960s when it became painfully clear that neither markets and charity nor private insurance could meet the health care needs of the elderly and poor. Markets are one legitimate means of aggregating and expressing preferences, but voting in democracies is another, and the public has long supported and continues to support public health insurance programs.
Fransen holds up mutual aid, and in particularly the Amish example of mutual aid, as an alternative to public programs. We also believe in and actively support mutual aid. For most Mennonite churches, however, mutual aid at the congregational level is not up to the task of covering health care costs. Medical costs following from one devastating auto accident or attributable to one heart transplant would exceed the total annual budget of most Mennonite churches. Mutual aid at the conference and denominational levels is more realistic, indeed we already do it through Mennonite Mutual Aid (MMA). But MMA is an insurance company and is subject to the same criticisms Fransen directs at other insurance companies. It is difficult to conceive how a mutual aid society covering thousands of people without personal relationships with each other could function any other way.
Moreover, Fransen's mutual aid proposal may not be economically viable. Consider, for example, that his proposal would not only require all Mennonites to forgo their employment-related coverage, it would likely also require that their employers provide them with additional financial compensation equal to that health benefit. Where else is the money to run this mutual aid program going to come from? But such a move is unlikely in part because employers would not receive the same tax benefit that they do for providing insurance. Likewise, the current financial struggles of Mennonite Church USA related self-insurance programs such as COMB (Covenant Mutual Benefit Plan) raise real questions about the economic viability of Fransen's suggestion.
The Amish (and Hutterites) do forego purchasing health insurance and do practice mutual aid. There is much to be learned from these groups. Still, Fransen underestimates the extent to which the Amish depend on a government-financed health care infrastructure - in particular on publicly-funded research relating to their own particular medical problems, not to mention the public funding that goes into basic research, hospital construction, physician and nurse education, and so on. Fransen also underestimates the extent to which Amish may benefit from cost-shifting by health care providers, often to public programs. To take a personal example, one of us belonged for ten years to a Mennonite communal group that refused to purchase health insurance for religious reasons, but also depended on the federally funded Hill-Burton program of a local hospital to provide medical services.
Interestingly, women members of a Hutterite community in Montana recently ended up in the Montana Supreme Court seeking to have their Medicaid coverage reinstated for medical services for which their community refused to pay. After having received Medicaid for many years, these women were denied coverage because the community's assets were determined to be too great for them to qualify. The women sought Medicaid reinstatement, apparently, because as women they had no right to determine the expenditure of the colony's money. While this case raises questions about power and gender equality within that community, it also raises questions about the extent to which Medicaid has been protecting community assets.
Fransen characterizes taxation as thefta familiar Libertarian positionand claims that it should be replaced by private charity. One wonders how far he would take this. Are public schools, roads, airports, water treatment plants, and fire departments also funded through theft? Or are services that protect the property and comfort of the wealthy appropriate, while government programs that succor the poor are deemed to be theft? Private charity is important, making a vital contribution to the needs of the poor in our country and in the world. However, even when supplemented by public programs, charity still leaves many without access to health care. This lack means that the poor receive fewer preventative and screening services, resulting in greater sickness, delayed diagnoses, and generally poorer outcomes. Similarly, lacking access means much poorer disease management for ailments such as hypertension and diabetes, with the obvious undesirable results. According to the Institute of Medicine, lack of access results in 18,000 premature deaths each year in the United States, six times the number killed in the World Trade Center bombings.(3) Far more would die prematurely if we were to terminate public health care programs, and many lives could be saved if we would expand them. It is hard to understand why Christians, charged with love of neighbor, should not favor this expansion.
Mennonites should practice charity and mutual aid. They should also advocate a positive role for the government in providing financing for healing and for health for all Americans, not just for those wealthy enough to purchase health care services on their own.
1. Pandora Press, 2006.
2. John Howard Yoder, The Christian Witness to the State (Newton, KS: Faith and Life Press, 1964).
3. See Institute of Medicine (U.S.). Committee on the Consequences of Uninsurance, Care without coverage too little, too late (Washington, DC: National Academies Press, 2002).
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