Article by: Edmund Plamowski, Jr.

“The solution Republicans should offer for health reform is no health reform”

Over the past year, as Democrats in Congress have pushed their proposals for the socialization of America’s health care system, Republicans have offered both constitutional criticisms of the Democrats’ plans, as well as counter measures that would in effect overhaul health care without drastically increasing the size of the federal government. The key argument against Democratic health care bills has been that it would be unconstitutional to mandate that individual American citizens buy insurance, whether it is from a private company or through some sort of public option. It is a valid argument: if any American wants to go uninsured it should be (and is) their constitutional right.

Republican proposals presented as counter plans to those presented by Democrats have included measures ranging from decreased barriers on interstate insurance to tort reform. In all Republican plans, tort reform has been a mainstay. In essence, conservatives, through tort reform, are pushing for a system that would limit the liability of doctors when lawsuits are brought against them in the form of caps on the amount of money a court can force one party to pay to another. The argument is that such limits would decrease insurance costs by allowing doctors to lower their rates, and if costs were lower, insurance companies wouldn’t have to pay as much for medical care and thus wouldn’t have to charge their clients such high rates.

Tort reform is a clear idea from Republicans that on the surface appears to be a quality proposal for lowering health care costs – and it probably would. However, that does not mean that it is a good idea to actually enact, mainly because it would run counter to any approach to health reform Republicans have pitched over the last year. The reasoning is simple: Federal tort reform would in all likelihood be unconstitutional just as Republicans have claimed plans put forward by Democrats are.

How is tort reform unconstitutional? Start by taking into consideration where the medical malpractice cases that would be affected by tort reform are carried out. For all intents and purposes they’re carried out in state civil courts. There lays the major problem. If, say, 90 percent or more of the country’s malpractice cases are argued and resolved in state courts, then they are not going to fall under tort reform legislation; that is to say if the tort reform legislation is constitutional. In all likelihood, knowing Congress, tort legislation would seek not just to regulate cases in the federal courts, but also those taking place in the states. Such legislation would be a gross violation of the sovereignty of state courts which should not be governed by federal mandates. If Republicans are going to continually argue that things such as abortion and the death penalty should be handled on a state-by-state basis, as opposed to at the federal level, then they should not be making an exception for tort reform. The only principled way to formulate real tort reform of the legal variety would be to enact it on a state-by-state basis.

Essentially, if conservatives wish to stay true to their principles, they need to drop the constant hounding for tort reform, or at least start pushing for it back home in their state legislatures. I would gladly call for it here in Massachusetts, but I doubt any result would come of it. To stop the socialization of health care by Democrats in Congress, Republicans need a new approach. For too many years we’ve seen supposedly principled conservatives fight progressive spending with more spending, and unconstitutional progressive measures with more unconstitutional measures. Now would be a good time for Republicans to read their name and actually stand up for the principles of a Republic; which would mean no national tort reform. The solution Republicans should offer for health reform is no health reform, and instead a focus on the more pressing issues posed to us today: fighting a high jobless rate, and the need to pay down the massive national debt.