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Obamacare and the Jewish Question

Differing reactions to compulsory health care in the US and in Israel is to be found in assessments of which value is more important: dignity or liberty?
Suzanne Last Stone, a former research fellow of the Hartman Institute’s iEngage Project, is University Professor of Jewish Law and Contemporary Civilization, Professor of Law, and Director of the Center for Jewish Law and Contemporary Civilization at Benjamin N. Cardozo School of Law, Yeshiva University. She has held the Gruss Visiting Chair in Talmudic Civil Law at both the Harvard and University of Pennsylvania Law Schools, and also has visited at Princeton, Columbia Law, Hebrew

Americans were riveted recently by the three days of oral argument before the United States Supreme Court on the constitutionality of President Obama’s healthcare legislation. The main bone of contention is the “individual mandate” provision, which requires nearly all individuals to buy health insurance or face stiff penalties. The heated opposition to compulsory health insurance in the United States is mystifying to most Israeli residents, who enjoy a compulsory health care system that is both effective at keeping costs down and also delivers technologically advanced care. To be sure, the system is far from perfect. Strikes by doctors and nurses have crippled hospitals in recent months; fights over what medicines are included in the “basket” of coverage are annual occurrences. Nevertheless, Israel’s health care system is often cited as a model and, certainly, virtually no one complains about its compulsory aspect. Compulsory health care comports with Israel‘s socialist history, of course. But the deeper reason for the markedly different reactions to compulsory health care in the United States and in Israel is to be found, instead, in their differing assessments of which value is the more important: dignity or liberty.
As James Whitman writes, political communities have different “social anxieties and social ideals” which profoundly influence their legal cultures and institutions. American anxiety focuses on government intrusion, and American idealism focuses on what Whitman calls securing “ the blessings of liberty .” Accordingly, Americans, in health care as in so many things, are oriented toward values of liberty and especially liberty against the state. From a certain American point of view, the sovereignty of the individual is sacred and must be fiercely protected against breach or intrusion by governmental actors. Forcing Americans to buy health insurance whether they or not they want it challenges consumer sovereignty. Mandatory health care would enhance public dignity as well as the dignity of the individual who cannot afford care. But, in the American context, the value of liberty will tend to override the value of dignity when the two conflict.
Legal cultures that elevate norms of honor and respect over norms safeguarding individual sovereignty will tend to subordinate liberty to dignity when the two values point in different directions. Europe is usually invoked as the paradigmatic example of a culture infused with ideals revolving around honor and respect. The Continent focuses on “the ambition to guarantee everyone’s position in society, to guarantee everyone’s ‘honor.’” The differing weight accorded to liberty and dignity in Europe and the United States helps to explain their different approaches toward a spectrum of issues, not only health care but also punishment and privacy.
Israel, like Europe, tends to elevate dignity over liberty. Israel’s social ideals and values are enshrined in its Basic Laws, which, in the absence of a written Constitution, have overriding regulative status vis-a-vis ordinary laws. While both dignity and liberty are proclaimed as the values of the Israeli state in the “ Basic Law: Human Dignity and Liberty ,” the value of dignity has carried more weight than freedom (How comprehensively “dignity” is conceived, however, and whether it is also a guarantee of equality and certain other freedoms is a matter of ongoing controversy.).
On the surface, the Israeli approach is similar to that of Europe. But, in fact, the ideal of dignity in the two legal cultures derives from profoundly different cultural heritages and therefore has profoundly different meaning and social import. While some have claimed that Europe, in the aftermath of the Holocaust, finally discovered the infinite worth of human beings and, as a result, made dignity a cornerstone of its legal institutions and norms, in fact, the ideal of “dignity” grows out of Europe’s feudal history. The emphasis is on honor and dignity in public, rather than the infinite worth of humans. As Whitman points out, Europe’s preoccupation with personal honor, status, and preventing loss of public dignity is longstanding; it was the case in 1791 and still is the case today. These ideals were once reserved solely for the aristocracy. Over the course of time, however, Europe leveled up: it finally extended norms once reserved for the nobility or wealthy to everyone.
The weight given to dignity as a value in Israel’s Basic Law is informed, instead, by core Jewish texts and values. The term for human dignity in the Basic Laws, kavod, is found hundreds of times in the Hebrew Bible and thousands of times in rabbinic literature. Kavod also connotes honor and even social and political status. The honor, due to God, is extended to his creatures, which are created in God’s image. The extension of norms of respect and honor associated with God to everyone is the logical outgrowth of the biblical description of humans created in the divine image. The biblical idea of creation in the image of God, in turn, links “dignity” to the infinite worth of humans. These core Jewish texts and ideas are well-captured in the Basic Law’s elaboration of the rights it guarantees as “founded upon the recognition of the value of human beings, of the sanctity of their lives…” The judicial task of giving meaning to the term “dignity” owed to all humans in light of this Jewish ideal and in the context of preserving the Jewish and democratic character of the State is formidable.
Institutions, whether health care systems or other sorts of governmental programs, are and should be tailored to the larger legal, political and cultural contexts in which they are set. For this reason, the State of Israel provides a unique opportunity to concretize specifically Jewish values, such as the dignity owed to all human creatures, in the public sphere. The relative valuing of dignity over liberty may not be suited to a different political and cultural context, such as that of the United States. At the same time, legal cultures are not airtight. To turn away from the Jewish question and back to the elephant – Obamacare – all eyes are on Justice Anthony Kennedy. Justice Kennedy, in a prior opinion dealing with norms of privacy, expressly tried to marry the ideals of liberty and of dignity. So, the fate of Obamacare is still anyone’s guess.

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