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

I. 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 pursued social benefits in the case of NHI.

II. TAIWAN'S NATIONAL HEALTH INSURANCE (NHI)

A. Background

Before March 1995, Taiwan had three major public medical insurance programs covering approximately 54% of its residents: Labor Insurance, Government Employee Insurance, and Farmers Insurance. (46) Each program was supervised and administered by a different government agency. (47) In addition, military personnel, who comprise about 2.3% of Taiwan's population due to conscription, were given free medical services at national armed forces hospitals and clinics. (48) Because consumer demand for health insurance was so low that the market for private insurance essentially did not exist, Taiwan had virtually no private health insurance programs. (49) Therefore, 43.7% of the population in Taiwan was uninsured. (50)

On March 1, 1995, the centralized, universal National Health Insurance program replaced the three existing health insurance programs. (51) It was extended to cover military officers in 2001.52 Taiwan's Constitutional Court has deemed the NHI as realizing fundamental national policies mandated by the Taiwanese Constitution. (53) According to Article 155 of the Constitution, "[t]he State, in order to promote social welfare, shall establish a social insurance system ...." (54) Article 157 also states that "[t]he state, in order to improve national health, shall establish extensive services for sanitation and health protection, and a system of public medical service." (55) Furthermore, Article 10(5) of the Constitution states that "[t]he State shall promote universal health insurance ...." (56)

Covering "all" medical services provided by physicians, (57) the NHI pays for medical care necessitated by illness, injury, and maternity (i.e. pregnancy and infant delivery). (58) In addition to the 54% of the population who were covered by the three predecessor health care plans, the main beneficiaries of the NHI were the 42% of the population, mostly the elderly and children, who were not covered by any of the three predecessor public insurance plans. (59) Today the NHI covers 96% of the population classified into six types of insureds:60 (1) civil servants and government agency personnel and public and private schools, employees of publicly or privately owned enterprises or institutions, employers or self-employed owners of businesses, and independently practicing professionals and technicians; (2) seamen (fishermen) and occupational union members who have no particular employers, or who are self-employed; (3) farmers; (4) voluntary military officers; (5) members of low-income families as defined by the social support Law; and (6) veterans and wives of veterans--and their children and dependents. (61) The dependents of the insured include unemployed spouses, lineal blood ascendants, and lineal blood descendants who are under twenty years old and not employed, or who are over twenty years old, but are incapable of making a living, or are in school without employment. (62) The two largest categories of the uninsured, about 4% of the population, are prisoners and missing persons. (63)

According to National Health Insurance Act ("NHI Act") Articles 11-164 and 691, (65) all residents who qualify for NHI are required to enroll in the NHI's mandatory insurance, which charges premiums proportionate to the annual income of the insured. (66) If a beneficiary does not enroll in the scheme after becoming eligible to do so, he or she is subject to a fine ranging from NT$3,000 (about US $95) to NT$15,000 (about US $470). (67) Benefits are withheld or suspended until the fines and premiums are fully paid. (68) As a result, 99% of those eligible participate, and the NHI covers almost all of the island's twenty-three million people. (69)

Taiwan's NHI is financed by employers, employees, and the government. (70) Employers and employees contribute based on a sliding income-based scale while the government funds a portion of services through its general budget. (71) Employers pay sixty percent of the premiums, employees pay thirty percent, and the government pays ten percent. (72) In addition, employers are required to enroll their employees and employees' dependents in the NHI within three days from the date on which employees become eligible. (73) If an employer fails to enroll an eligible employee in the NHI, he or she can be fined a sum equal to twice the amount of the unpaid premiums; premiums range from NT$911 (about US $28.62) to a maximum of NT$9,598 (about US $301.54) per month. (74)

Taiwan's NHI covers specific health care services provided by most health care institutions, is a centralized single-payer system with standardized medical fees and charges for medicines, procedures and checkups. (75) While the NHI Act does not prohibit private health insurers from offering alternative health care insurance plans, the Ministry of Finance issued an order in 1995 "advising" private health insurers not to provide similar health care services and coverage as provided by the NHI. (76) Although this means that individuals are compelled to buy insurance through the NHI, they have the liberty to freely choose physicians and hospitals themselves. (77)

B. Debates on the Constitutionality of the Compulsory NHI

On the one hand, Taiwan's NHI advances the public health interests by treating Taiwan's citizens' diseases and disabilities and protecting and promoting their health. On the other hand, the NHI grants the government the authority to compel almost all citizens to enroll in the NHI and imposes upon citizens obligatory premium payments into the NHI. This health care program is no doubt coercive because it (1) limits citizens' freedom to purchase health care plans or to choose to go uninsured under the compulsory insurance clause, and (2) restricts citizens from enrolling in other private health insurance plans under the universal insurance clause. (78) Despite this tension between the legitimate public interests served by the NHI and the duties it imposes on citizens, it is clear from legislative discussions that took place during the process of drafting and enacting the NHI Act that, in the government's view, the benefits of efficiency, universalism and solidarity of social insurance (79) outweigh the values of pluralism and the loss of freedom caused by the individual mandate. (80)

This view has been tested and explored in several cases (81) that were ultimately brought before Taiwan's constitutional court, which is known as the Council of Grand Justices. In particular, the Council was asked to determine whether the NHI's individual mandate was unconstitutional as violating citizens' individual liberty. (82) In 1999 the Council held in Judicial Yuan Interpretation No. 472 (Shizi No. 472) that the individual mandate provisions in Articles 11-1 and 69-1 of the NHI Act are not unconstitutional because the restriction on individual liberty is justified as a means to promote social welfare and to improve national health. (83) However, the Council also stated that "the authorities concerned shall ... conduct at an appropriate time a full-range evaluation and implement improvement measures in aspects of the insurance operations (including diversification of the insurers), categories of the insured, the insured amount, premium rates, payment of medical insurance, austerity measures and the appropriateness of temporary suspension of insurance benefits." (84) In other words, the Council agreed that the universal compulsory health insurance serves the constitutional objective of establishing a system of social security and the public policy goal of allowing the state to meet the health care needs of the disadvantaged. (85) It also placed the individual mandate under a constitutional scrutiny to explore whether its implementation meets those policy objectives. (86)

Although the Council held that the NHI's individual mandate did not significantly restrict individual liberty as to outweigh the state's constitutional and public policy objectives, it failed to analyze the extent of those restrictions in depth. (87) In the joint concurring opinion, Grand Justice Jyun-hsyong Su expressed concerns that, when it examined the constitutionality of the NHI's individual mandate the Council failed to consider how the individual mandate, as enacted, might undervalue individual autonomy and ignored less intrusive alternative policies that might achieve the public health objectives as well as or better than the individual mandate. (88) For example, the Council analyzed the individual mandate by simply concluding that the utility principle applied: "[p]rovisions ... regarding compulsory subscription of insurance and premium payment are based on considerations over mutual social support, risk-sharing and public interests, and therefore conform to the constitutional purpose of promoting national health insurance." (89) It did not discuss the issues of individual liberty, nor did it explore how the individual mandate might affect individual liberty if imposed in conjunction with different policy instruments (e.g., single-payer or multiple-payer system). (90) Moreover, the Council also failed to require the state to assess important aspects of the NHI's operations, such as the effects of diversifying the insurers beyond a state-administrated single-payer. This type of assessment in particular cases might lead Taiwan to revise its appreciation of the NHI's individual mandate. (91)

III. THE SIGNIFICANCE OF THE FREEDOM TO PURCHASE OR DECLINE HEALTH INSURANCE

The lacunae in the Council of Grand Justice's decision is attributed in part to an absence of tenable criterion to accurately assess the trade-offs between the compulsory NHI's restrictions on individual liberty and the state's pursued public policy objectives. This absence of criterion occurs because of the vagueness and the undecided nature of the significance of the freedom to purchase or decline health insurance. There has been debate over whether the freedom to purchase or decline health insurance without government intrusion is a "basic liberty." (92) This debate also questions whether this same freedom is relevant to individuals' use of reason to form their own conceptions of the good and their ability to judge and regulate the basic social structure. Wei-In Tsai, amongst others, (93) argue that if the freedom to purchase or decline health insurance is a basic liberty, social solidarity--promoting social welfare and improving national health--might not be a strong enough justification for the restrictions the NHI's individual mandate imposes. (94) However, when assessing the individual mandate, the significance of the freedom to purchase or decline health insurance was ignored, increasing health insurance coverage for all citizens was clearly the priority.

This ignorance may be illustrated by comparing the alternative approach adopted by the Japanese Constitutional Court and the conclusions of the Taiwanese Council of Grand Justices. In 1958, the Japanese Constitutional Court held that the individual mandate for health insurance did not violate fundamental constitutional rights because the freedom to decline health insurance was not a basic liberty. (95) The Court argued that fundamental constitutional rights (or basic liberties) should be limited to the "core values," related to the formation or revision of an individual's personality and integrity. In terms of the freedom of thought and conscience, (96) the core values are normally established within, and interpreted by, certain religious, philosophical, or moral doctrines in light of how the various aims of those values are understood and ordered. (97) since the proposed freedom to decline health insurance cannot be found in any of the religious, philosophical, or moral doctrines recognized by the Court, it did not satisfy the requirements for being a core value. (98) The freedom to decline health insurance was thus not recognized as a basic liberty within constitutional pantheon and, therefore, was denied any special or priority status for protection. (99) Namely, if the state could prove that denying individuals the freedom to decline health insurance actually helped those individuals realizing their interest in mutual social support and risk-sharing, then the individual mandate for the Japanese Medical Care Insurance System was constitutionally justified. (100)

Taiwan's Council of Grand Justices concluded that denying the freedom to decline health insurance by the NHI Act was justified as a means to promote social welfare and national health. (101) Unlike the Japanese Constitutional Court, the majority of Taiwan's Grand Justices thought that the freedom to refuse to enroll in the NHI was a fundamental constitutional freedom, or a basic liberty, vital to every person's rights to develop his or her own personality and to self-determination. (102) According to Grand Justice Jyun-hsyong Su, the freedom to decline health insurance is strongly related to an individual's right to freely decide how to use benefits, receive benefits, and dispose of resources needed for their livelihood. (103) Furthermore, even though the freedom to decline health insurance is a "non-enumerated freedom" under the Taiwanese Constitution, (104) Grand Justice Chen-Shan Li argued that this freedom could still be recognized as a legally enforceable fundamental constitutional freedom (105) if: (1) it shares characteristics relevant to identification of fundamental freedoms and rights; (106) (2) it relates to intimate and important decisions about one's life or relationships; (107) (3) it does not interfere with the survival of society or the functioning of important institutions within it; (108) and (4) its existence does not violate or restrict the fundamental rights of others. (109) In other words, although the freedom to decline health insurance is not an enumerated constitutional freedom, this fact alone should not be a sufficient justification for restricting this freedom. (110) The constitutional significance of the freedom to decline health insurance should be decided independently on the basis of whether such a freedom is a harmless and necessary means for an individual to pursue his own ends in planning his life. (111) Unfortunately, the Council did not analyze the extent of the freedom to decline health insurance in depth, nor did the Council assess the burdens on freedom imposed by the compulsory NHI. (112) The Council also did not thoroughly analyze the trade-off between the need to protect the freedom to decline health insurance and the utility of Taiwan's universal individual mandate.

While the Japanese Constitutional Court and the Taiwanese Council of Grand Justices disagreed on whether the freedom to decline health insurance was a fundamental constitutional freedom, both courts agreed that the "core values" - the essential conditions for the adequate development of personality and integrity would be dispositive to the question of whether the state could justifiably deny or restrict the freedom to decline health insurance. (113) However, the Taiwanese Council recognized that restricting the freedom to decline health insurance could significantly violate core constitutional values but failed to explore whether it violated those values. In contrast, the Japanese Court concluded that the alleged absence of the freedom to decline health insurance from any recognized moral, religious, or philosophical system precluded it from being such a value. (114) In other words, both courts failed to give serious consideration to the constitutional significance, or core values, of the freedom to purchase or decline health insurance when analyzing the constitutionality of compulsory health care plans.

A number of prominent thinkers on the nature of justice and liberty have argued that a liberty should be recognized as a core value if that liberty is essential to an individual's basic capability to formulate and express intimate and important decisions about his or her life or relationships. (115) For example, according to John Rawls, a liberty is more or less significant depending on whether it is more or less involved in the full and informed exercise of the moral powers (so-called "the central range of application" of a liberty). (116) For Rawls, the moral powers are the capacities for the conception of the good and a sense of justice. (117) In other words, the "core values" (or those values with constitutional significance) of a liberty should be defined by the central range of application and related to an individual's fundamental interests--maintaining the basic capabilities to exercise moral powers as a free and equal member of the society. (118) Therefore, when evaluating the core values of the freedom to purchase or decline health insurance, society should consider not only the free advocacy of religious, philosophical, or moral doctrines as the Japanese Constitutional Court did, but also the essential social conditions for the adequate development and full exercise of moral powers. Furthermore, if the freedom to purchase or decline health insurance is essential to the moral powers, then it is not only a core value, but also a fundamental constitutional freedom that can be recognized and enforced when the state decides to trade off liberty to pursue its constitutional and public policy goals.

For these reasons, the following sections will delineate why the compulsory NHI should be carefully assessed for its impact on individual liberty based upon a human rights impact assessment. (119) This assessment could be used to introduce criterion to evaluate the significance of the freedom to purchase or decline health insurance and to show how the NHI compulsory health insurance scheme affects this freedom.

IV. HUMAN RIGHTS IMPACT ASSESSMENT FOR THE COMPULSORY NHI

Taiwan's and Japan's experiences show that, even though the individual mandate for health insurance can achieve valid constitutional public health policy objectives, the constitutionality of the individual mandate should nonetheless be carefully evaluated. To clarify the constitutionality of Taiwan's compulsory NHI by means of an assessment of the impact this mandate has on human rights, I propose the following four analytic steps, with a series of questions designed to balance the public benefits of the NHI against its burdens on individual liberty (120) (see Figure 1):

(1) First, the burden NHI imposes upon human rights and individual liberty should be examined, thus determining whether the compulsory NHI restricts a given liberty and what aspects of that liberty may have been infringed (see infra, Section V).

(2) second, the NHI's policy goals should be clarified in order to assess whether the NHI could or does achieve its objectives. (see infra, section VI).

(3) Third, the effectiveness of the NHI should be evaluated in order to assess whether the NHI provides the least restrictive means to achieve its proposed purpose. (see infra, section VII).

(4) Fourth, the trade-off between restrictions on individual liberty and the proposed public order realized by the NHI should be analyzed (the importance test). The court should carefully consider whether there is an acceptable trade-off between the restricted liberty and the policy objectives served by the NHI's individual mandate. The importance test is based upon John Rawls' analytical approach (the liberty principle and the priority principle) in the theory of justice (see infra, section VIII), and is applied to assess these trade-offs. Two separate but related policy elements, the compulsory scheme and the single-payer system, and their influences on the central application range of individual liberty, are further analyzed in this step (see infra, Sections VIII(C) and (D)).

If the answer to any one of these issues raised in steps 2 thru 4 is "no", enacting the compulsory NHI and restricting individual liberty is unjustified. (121)

After conducting a careful analysis, this Article concludes that, even though Taiwan's compulsory NHI has a clear and achievable policy purpose of pursuing economic efficiency, (122) the compulsory scheme is unjustified because it is not the least restrictive means to achieve the intended purpose (123) because it substantially restricts individuals' freedom to purchase or decline health insurance. (124) Limited compulsory health insurance (requiring only segments of the population to enroll in social health insurance) is less intrusive and will achieve a similar purpose. In addition, the NHI's individual mandate alone does not fail the importance test because it does not hinder individuals from developing a conception of the good or a sense of justice. However, accompanied by the single-payer system, the NHI's compulsory scheme impinges the central application range of individual liberty, imposes restrictions on the exercise of moral powers, infringes upon the priority of liberty, and fails the importance test. (125)

V. STEP 1: EXAMINE HUMAN RIGHTS BURDENS OF THE COMPULSORY NHI

Even in a well-designed health care policy, the burdens on human rights and individual liberty may outweigh social benefits and economic interests. (126) Therefore, it is important to identify and evaluate all potential infringements on human rights. (127) Defining human rights burdens requires a fact-finding process in order to examine different perspectives regarding what human rights are affected by health care policy. The nature and contents of restricted human rights and the degree of invasiveness should be clarified in the assessment. For example, in order to assess burdens on individual liberty imposed by Taiwan's universal compulsory NHI, first we need to explore whether individual liberty includes an individual's self-determination to purchase or to refuse to enroll in a health care plan and outline what aspect of the liberty is impacted. International human rights documents and domestic statutes and cases may be considered the source of basic rights and liberties. Even though these documents merely provide a cursory basis, in this step it is sufficient to provide a starting point to recognize what rights and liberties might be infringed upon. In other words, if there is "reasonable doubt" about whether the compulsory NHI violates individual rights and liberties, we can then move from this initial examination to the next step. Whether the restriction on these rights and liberties is justified will be evaluated later.

One debate regarding the relationship between individual insureds and health insurers, (128) especially in governmental health insurance programs, is whether individuals have the freedom to autonomously choose to enroll in health insurance or not, and which health insurance plans are included in this freedom. For example, respect for individualism and pluralism and a fear of the seemingly limitless governmental authority are the main reasons why the u.s. had no universal national health insurance program. (129) Even though this perspective has been challenged with the passage of the Patient Protection and Affordable Care Act. Due to rising medical costs and health care market failures in the country, American society continues to seek a balanced relationship between individual autonomy and public interests. (130) Western European countries with well-developed public social insurance also debate whether the governmental authority in social insurance has excessively intervened with individual autonomy. (131) unfortunately, there is no international declaration or domestic law directly protecting the freedom to purchase or decline health insurance. Therefore, this freedom can only be exercised on the basis of the historical development of patients' rights and upon the more general liberties such as civil and political rights. Readers must remain cognizant that the reorganization of the freedom to purchase or decline health insurance is not equivalent to supporting a free market in health care. Even if the individual has the freedom to refuse to enroll in a health care plan, such a freedom ought not to be taken as an absolute principle in health care policymaking, and can be regulated in order to pursue the greater social benefits or to strengthen the total system of liberty shared by all. (132)

There are four different perspectives on the status of the freedom to purchase or decline health insurance in social health insurance systems.

A. Taiwanese Constitution

First, in Taiwan, the freedom to purchase or decline health insurance can be derived from Article 22 of the Constitution, which states that " [a]ll other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution." (133) In other words, the only purpose for which power can be justifiably exercised over any member of a civilized society against his or her will to interfere with liberty is to prevent harm to others. (134) In shizi No. 472, Grand Justices Sen-Yen Sun and Jyun-hsyong Su argued that compulsory health insurance, especially the individual mandate clause, would significantly restrict individuals' liberty. such restrictions especially include the freedom of personality development and self-determination, (135) which is generally protected in the Constitution. (136) In other words, in Taiwan, the freedom to purchase or decline health insurance is regarded as a constitutional fundamental freedom and should be respected on the basis of individualism and pluralism. Taking this into consideration, the NHI's compulsory health insurance scheme is a coercive program that substantially regulates an individual's liberty.

B. Individual Autonomy

Second, from the libertarian perspective, individuals should have the right to opt-out of health care plans on autonomy-based grounds. Libertarians believe that "greater consumer choice in the purchase of health insurance would better line up the interests of the buyers and insurers." (137) Libertarians also argue that individual liberties should be respected by allowing purchasers the freedom to choose insurance contract terms. (138) Because using a person to benefit others "does not sufficiently respect and take into account of the fact that he is a separate person," (139) the individual mandate for health insurance, which requires some individuals to sacrifice their good for the benefit of others, (140) would violate the principle of individual liberty. (141) In addition, the individual mandate seems paternalistic, (142) in that it fails to respect individuals' incommensurable conceptions of the good regarding health care, which in turn reflects or indicates the diversity of their final ends and aspirations that they have formulated in their life plans.

The patient autonomy theory also expresses concerns about guaranteeing the liberty of every adult person of sound mind to determine what shall be done with his or her own body. (143) Since patient autonomy implies self-determination, self-rule, and liberty in the health care field, (144) the doctrine of autonomous decision-making should be expanded to apply to health care choices across the board--including both clinical and non-clinical aspects of one's own health care. (145) On the one hand, patients have a clear right to make their own clinical decisions to determine what medical treatments they want (e.g., the right to decide to or not to undergo medical treatments, and the right to choose diagnostic or screening tests, therapeutic procedures or medications, and research protocols). (146) on the other hand, it also follows from patient autonomy that patients have the right to make non-clinical decisions regarding general health care issues such as health care plans, immunization policies, and health education (e.g., choosing health care financial packages from among an array of personal savings, private insurance, and public health care programs) because of the influence these non-clinical decisions have on the accessibility, affordability, and quality of health care. (147) Therefore, it logically follows that individuals have a liberty, grounded in patient autonomy, to freely decide to (or not to) purchase a health care plan, and what health care plan to purchase. (148)

Though some argue that the state should grant the exclusive authority to mandate health benefits (149) and such a mandate is necessary for the uninsured, (150) nonetheless many do not deny that coercing people into purchasing health insurance would restrict certain liberties. (151) Instead of denying the existence of the freedom to purchase or decline health insurance (as revealed in the Japanese Constitutional Court's decision (152)), some try to justify the individual mandate and its restrictions on individual liberty by arguing that "the obligation to contribute to [mandatory coverage of health insurance] is more important than any supposed liberty not to" because the public good at issue here is extremely important. (153) Thus, even those who argue in favor of the universal compulsory health insurance admit that the freedom to purchase or decline health insurance should be recognized and respected as embedded in the liberal notions of autonomy.
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Title Annotation:I. Introduction through V. Step 1: Examine Human Rights Burdens of the Compulsory NHI B. Individual Autonomy, p. 51-75
Author:Wu, Chuan-Feng
Publication:Journal of Law and Health
Date:Mar 22, 2013
Words:5635
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