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The Hippocratic Underground: Civil Disobedience and Health

Care Reform

Macauley, Robert.

Hastings Center Report, Volume 35, Number 1, January-February

2005, pp. 38-45 (Article)

Published by The Hastings Center

DOI: 10.1353/hcr.2005.0010

For additional information about this article

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38 H A S T I N G S C E N T E R R E P O RT January-February 2005

In general, when physicians believe a law is unjust,they should work to change the law. In exceptional cir-cumstances of unjust laws, ethical responsibilities shouldsupercede legal obligations.

American Medical Association1

T

hroughout their training, physicians aretaught to play by the rules, especially whenthose rules are the law of the land. In the era

of managed care, this includes accurate billing ofthird-party payers, with the result that patients mustpay out-of-pocket for uncovered services. BernardLo writes in his introductory textbook of medicalethics, There are strong ethical reasons for physi-cians not to misrepresent the patients condition tothird parties. Physicians should keep in mind how

misleading statements could undermine the doctor-patient relationship and should seek constructiveways to resolve such dilemmas.2

In spite of this, a recent study found that 39 per-cent of physicians admitted to manipulating reim-bursement rules at least sometimes in the previousyear. The authors hypothesize that these physiciansmay see manipulation of reimbursement rules as anindirect, or covert, form of patient advocacy and

even a professional obligation.3

Another studyfound that physicians consistently assumed that so-ciety would provide greater justification ratings [fordeception] than they would.4 Indeed, 26 percent ofPhiladelphians surveyed approved of a physicianmisrepresenting a patients condition to secure fund-ing for a necessary procedure, and this percentagerose to 50 percent among those who felt physiciansdid not have sufficient time to appeal coverage deci-sions.5

Robert Macauley, The Hippocratic Underground: Civil Disobedi-ence and Health Care Reform, Hastings Center Report 35, no. 1(2005): 38-45.

Health care reform is bottled up. Socially responsible physicians, forced to curtail care to uninsured

patients, should respond with organized, open defiance, by billing the costs of the care to the accounts

of patients covered under Medicaid or Medicare. Reverse cost-shifting: maybe it could work, certainly it

would be justified.

The HippocraticCivil Disobedience and Health Care Reform

Underground

b y RO B E R T M A C A U L E Y

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H A S T I N G S C E N T E R R E P O R T 39January-February 2005

Is violating the law in order toprovide necessary medical care everethically justified? As John Rawls putsit more generally: At what point doesthe duty to comply with laws enactedby a legislative majority (or with exec-utive acts supported by such a major-

ity) cease to be binding in view of theright to defend ones liberties and theduty to oppose injustice?6 Commen-tators typically think about this ques-tion by discussing individual casesshould a physician deceive an insur-ance company to benefit thispatientwith these conditions. The questionshould also be examined on a societalbasis, by appeal to the broader notionof civil disobedience.

The Need for Reform

The need to reform the UnitedStates health care system haslong been recognized. Motivationsbehind such reform range from re-spect for human dignity (the UnitedStates is the only developed nationthat does not guarantee basic healthcare for all citizens), distributive jus-tice (some citizens are privy to themost advanced technologies in theworld, while others are deprived of

even the most basic services), andeconomic pragmatism (health careexpenditures have risen from 10 per-cent of Gross Domestic Product in1985 to 15 percent in 2003 to a pro-jected 18 percent in 20137). Well-known proposals for reform includethe Physicians for a National HealthProgram plan for universal coveragethrough single-payer national healthinsurance,8 expanded coveragethrough tax credits and free marketreform,9 and universal coverage con-

taining elements of both methodolo-gies.10 In the past, though, proposalsfor universal coverage have failedunder a deluge of criticism from pro-fessional organizations, including theAmerican Medical Association, andintensive public relations campaignsfunded by groups with a financial in-centive to maintain the status quo.11

Until recently, physicians advocat-ing health care reform have acted pri-

marily through proper channels,such as publication, testimony beforegovernment at various levels, lobby-ing elected officials, and grass rootsmobilization. Prior to 2004, only ahandful of articles discussed civil dis-

obedience as it relates to the practiceof medicine, and none have done sorecently.12 Faced with such powerfulopposing special interests, most re-formers ultimately fall into a categoryfor which Henry David Thoreau, inhis famous essay on the subject, hadonly disdain:

They hesitate, and they regret, andsometimes they petition; but theydo nothing in earnest and with ef-fect. They will wait, well disposed,for others to remedy the evil, that

they may no longer have it to re-gret. At most, they give only acheap vote, and a feeble counte-nance and God-speed, to the right,as it goes by them.13

Recently, however, physicians haveshown a willingness to work outsideconventional channels. In Januaryand February 2003, thirty-nine sur-geons in West Virginia and the ma-

jority of New Jerseys 22,000 physi-cians refused to offer non-emergentcare unless certain regulatory goalswere met, signaling a change in thetone of the debate and the range oftools physicians were willing to use.14

These work stoppages were illegal,15

and although they were temporaryand arguably moderate, they elicitedsome strong reactions. Sidney Wolfe,director of Public Citizens HealthResearch Group, declared that thestrike by doctors clearly violates theAMA ethical code.16

The work stoppages were not ex-amples ofcivil disobedience, however,for the physicians goal was to inducethe government to establish a ceilingof $250,000 for pain and damageawards in malpractice suits. As Rawls

writes, Civil disobedience cannot begrounded solely on group or self-in-terest. Instead one invokes the com-monly shared conception of justicethat underlies the political order.17

There is some hint that the AMAethical code might tolerate someforms of civil disobedience. As Wolfenoted, the code is opposed to collec-tive activities that might jeopardizepatients health, and it objects thatstrikes reduce access to care, elimi-

nate or delay necessary care, and in-terfere with continuity of care. Eachof these consequences is contrary tothe physicians ethic. Physiciansshould refrain from the use of thestrike as a bargaining tactic. But thecode also states that collective activi-ties aimed at ultimately improvingpatient care may be warranted insome circumstances, even if they cre-ate inconvenience for the manage-ment.18 The question is whethercivil disobedience as a method of

protest and means to social changerightly falls under the rubric of col-lective activities that are appropriatefor physicians to engage in.

Definition of CivilDisobedience

Rawls has defined civil disobedi-ence as a public, nonviolent,conscientious yet political act con-

Recently, physicianshave shown a willingness

to work outside

conventional channels.

In 2003, thirty-nine

surgeons in West Virginia

and the majority of New

Jerseys 22,000

physicians refused to

offer non-emergent care

unless certain regulatory

goals were met.

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trary to law usually done with the aimof bringing about a change in the lawor policies of the government.19 Assuch, it presupposes a just society(and is thus distinguishable from rev-olution, which seeks to overthrow anunjust society), and it respects the na-

ture of law itself.There are three criteria for civil

disobedience: openness, nonviolence,and submission.20 The open, publicnature of action is central to the effi-cacy and moral authority of civil dis-obedience, as its primary intention isnot to get away with violating the lawbut to bring about reform of the law.In a medical context, then, civil dis-obedience is entirely distinct fromgaming the system, which attemptsto skirt resource rules while appear-

ing to comply with them.21 Becausecivil disobedience is nonviolent andpassive, participants are willing to ac-cept the appropriate punishment forviolating a law which they feel is un-justas Mohandas Gandhi and Mar-tin Luther King, Jr., famouslydemonstrated. Rawls writes, Thelaw is broken, but fidelity to law is ex-pressed by the public and nonviolentnature of the act, by the willingness toaccept the legal consequences of ones

conduct.22

Disobedience may be either director indirect. In the direct form, pro-testers violate the law that they findobjectionable. They might, for exam-ple, hand out clean needles to addictsto prevent the spread of HIV. In indi-rect civil disobedience, laws unrelatedto the one in question are violated.Protesters who block intersections areprobably not objecting to traffic regu-lations. They are trying to raiseawareness about an unrelated law that

they perceive to be unjust.For physicians, indirect civil dis-obedience is neither sufficient norpractical. In the first place, indirectcivil disobedience achieves no imme-diate benefit. By contrast, physiciansengaging in direct civil disobediencewould violate federal laws precisely inorder to procure medications and ser-vices for people who need them andwould otherwise be deprived of them.

In addition, the political potency ofdirect action is infinitely greater, forthe general public (and hence thegovernment) places a much higherpremium on the orderly workings ofthe health care delivery system than,for example, on the smooth flow of

traffic at the corner of Main and ElmStreets.

Since both forms of civil disobedi-ence involve active protest of an un-just law, they are usually distin-guished from simply refraining toparticipate in those laws, which isconscientious objection. One of themost famous proponents of conscien-tious objection is Thoreau, who ar-gued that

it is not a mans duty, as matter of

course, to devote himself to theeradication of any, even the mostenormous, wrong; he may stillproperly have other concerns toengage him; but it is his duty, atleast, to wash his hands of it, and,if he gives it no thought longer,not to give it practically his sup-port.23

Conscientious objection has little rolein health care reform, though. Simplyby engaging in the practice of medi-

cine, physicians implicitly take part inthe health care finance system. Towash their hands of it would requireceasing to practice medicine, whichcould only harm the patients theyhad previously pledged to treat.24

A final type of disobedience,which Childress terms evasive non-compliance, involves direct violationof laws but is neither open nor sub-missive. It simply seeks to avoid injus-tice rather than to reform the systemthat perpetuates the injustice. Chil-

dress cites the Underground Railroadas an example.25 Gaming the systemcould rightly be considered an exam-ple of evasive noncompliance, al-though because of its covert and eva-sive nature it is susceptible to accusa-tions of greed and selfishness. AsH.B. Acton notes, When disobedi-ence is accompanied by submission tolegal penalties the distinction between

ambition and personal integrity ismarked as closely as it can be.26

Justifying Civil Disobedience

Not every perceived injustice mer-its civil disobedience. Severalpreconditions must be met. The firstof these, according to King, is thecollection of the facts to determinewhether injustices are alive.27 ForRawls, one such injustice is the viola-tion of the principle of fair equality ofopportunity: The meaning of equal-ity is specified by the principles of jus-tice which require that equal basicrights be assigned to all persons.28

This precondition rests on the ques-tion of whether health care is a rightor a privilege. If it is merely a com-

modity that may be purchased bythose with sufficient means to do so,then no moral law is violated by notproviding basic medical care to allpersons in a society. However, ifhealth care is deemed a basic humanright, yet a substantial subset of thepopulation is unable to purchase it,then the governments failure to pro-vide it would constitute substantialand clear injustice.

The second precondition is that

the normal appeals to the politicalmajority have already been made ingood faith and that they havefailed.29 King describes this step asnegotiation. Attempts to providebasic medical care to all Americans byPhysicians for a National Health Pro-gram and the Clinton administration,in 1989 and 1993 respectively, wereunsuccessful. However, the PNHPrevision promulgated in 2003 and theAMA proposal of 2004 have yet to beseriously considered. Thus some

might say that legal means of reformhave not been exhausted.Yet even if some legal options re-

main, this does not preempt civil dis-obedience. If past actions haveshown the majority immovable or ap-athetic, writes Rawls, further at-tempts may reasonably be thoughtfruitless, and a second condition forjustified civil disobedience is met.30

Given the opposition to guaranteed

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universal coverage by the health in-surance industry and the proponentsof limited government who decry yetanother entitlement, reformthrough normal political channelsmay reasonably be thought fruit-less.

Finally, the specific form of civildisobedience being considered mustcarry with it some reasonable possi-bility of success. Rawls writes, Sincecivil disobedience is a mode of ad-dress taking place in the publicforum, care must be taken to see thatit is understood.31 Given the nega-tive responses to the physiciansstrikes of 2003 and the potential formisconstruing the purpose of civildisobediencewhether through sim-ple misunderstanding or because of

propaganda from opposing special in-terest groupsthis final caveat is ex-tremely important.

Civil Disobedience and HealthCare Reform

As it relates to the practice of med-icine, civil disobedience has his-torically been carried out to supportminority groups who either were ig-nored by the majority (such as when

women called for birth control in theearly twentieth century and personswith AIDS demanded additionalfunding in the late twentieth centu-ry32) or were simply unable to speakfor themselves (as in animal rights33

and anti-abortion protests34). Thesame can be said for other areas ofmedicine that, though they fall out-side the scope of this paper, mightlend themselves to civil disobedience,such as the use of medical marijuanaand the needle exchange programs

mentioned above. And the sameseems to be true of using civil disobe-dience to agitate for universal cover-age; the rights in question pertain to asubstantial minority group with littlepolitical voice or power.

The most obvious way physiciansmight engage in direct civil disobedi-ence to improve health care financingis to manipulate billing systems inorder to fund necessary but uncov-

ered evaluations and interventions.One must distinguish, however, bothbetween private and government-funded insurance, and between insuf-ficient coverage and complete lack ofcoverage.

As long as one is evaluating private

insurance, complete lack of coveragepresents no moral dilemma. For evenif there exists a basic human right tohealth care, no private company has amoral obligation to provide it for aspecific person. Not only would it bearbitrary to pick any one health insur-ance company to fund an uncoveredpatients costs, but it would siphon

off funds that should be directed to-ward the care of patients already en-rolled in the company.

There have been well-publicizedcases of insufficient coverage, such asHMOs refusing so-called experi-mental therapies or rejecting poten-tially life-saving interventions on a

cost/benefit analysis. Also, in marketswith a limited range of options, pa-tients may be forced to enroll in aplan whose benefits fall short ofbasic health care. But these also arenot appropriate contexts for civil dis-obedience. No law is broken as longas the private insurer lives up to theformal agreement with the insuredpatient. Further, even if the insurershouldcover the excluded service, or if

the patient believed that the therapywould be covered, the case does notfall under the rubric of civil disobedi-ence properly understood, becausecivil disobedience is defined as a po-litical act designed to change thelaw or policies of the government.

In such a case, the concernedphysician has two options: evasivenoncompliance (that is, gaming thesystem, with the inherent danger ofdepriving other patients of resourcesowed them), or the private sectorequivalent of civil disobedience,which some have called direct ac-tion. Defined as the strategic use ofimmediately effective acts, such asstrikes, demonstrations, or sabotage,to achieve a political or social end,this kind of direct action differs from

direct civil disobedience in that itdoes not appeal to government tochange laws.35 It attempts to compel aprivate group to change its policies.When the documentarian MichaelMoore picketed the offices of anHMO that initially refused a life-sav-ing pancreas transplant to one of itspolicy holders, he was engaging inthis kind of direct action. By evokinga public outcry and generating nega-tive publicity, Moore pressured the

company into changing its policy onexperimental therapy, at least inthat case.36

The government is a legitimatetarget for civil disobedience preciselybecause, if there is a universal humanright to basic health care, it is the gov-ernment that incurs an obligation toprovide it. In terms of insufficientcoverage, though, the question mustbe asked: What degreeof health carecan properly be deemed a basichuman right? One might argue that

basic preventive care, emergency care,and short-term, clearly efficaciouslife-saving treatment are basic humanrights. But what of expensive thera-pies that have only a modest chanceof success? In terms of preventivecare, how often must expensivescreening procedures likecolonoscopy be performed to meetthe condition of basic health care?Clearly there is an extreme to be

The government is alegitimate target for civil

disobedience precisely

because, if there is a

universal human right to

basic health care, it is

the government that

incurs an obligation to

provide it.

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avoided, for certain purely electiveprocedures (such as cosmetic surgery)could never be considered an obliga-tion for the government to provide.

Objections over such matters ofdegree rarely rise to the level of civildisobedience. Rawls himself admits

that violations of what he calls theDifference Principle, which statesthat social and economic inequalities. . . are just only if they result in com-pensating benefits for everyone, andin particular for the least advantagedmembers of society, do not lendthemselves as easily to civil disobedi-ence. He writes, The resolution ofthese issues is best left to the politicalprocess provided that the requisiteequal liberties are secure.37

Even when one determines that an

injustice has occurred in government-funded care, the third requirementfor civil disobediencethat there be areasonable possibility of successmay prove insuperable. Civil disobe-dience works by bringing about pop-ular uprisings. If an individual physi-cian feels that one of her patients de-serves a certain benefit that is not cov-ered by Medicare or Medicaid, shewill have to convince not only herpeers of the injustice but also the

public at large. And unlike the mil-lions of Americans who lack anyhealth insurance whatsoever, the sev-enty-six million who are covered, ifinadequately, by Medicare and Med-icaid38 are less likely to evoke suffi-cient sympathy and outrage to winover very many citizens.

There remains the significantproblem of those who lack health in-surance altogether. Forty-five millionAmericans (including eight millionchildren) had no health insurance in

2003,39

and nearly eighty-two millionwere uninsured for some part of2002-2003.40 When politicians pro-claim that all Americans have accessto basic health services, they arespeaking primarily of emergency careand ignoring the fact that, even if it isavailable, it comes at a steep price.The patient who receives emergencycare can safely expect to receive size-able bills, and to be eagerly pursued

by hospitals and, ultimately, collec-tion agencies.

In point of fact, the uninsured pa-tient will be charged more for thetreatment he receives than would aprivate insurance company or thegovernment, as both of those entities

utilize cost shifting to reduce theirexpenditures. Cost shifting, definedas the phenomenon in whichchanges in administered prices of onepayer lead to compensating changesin prices charged to other payers,41

increases fees to uninsured patients inorder to compensate for reduced feespaid by governmental and private in-surers, which are achieved throughgovernmental regulation42 and a vari-ation of collective bargaining, re-spectively. Preventive care is by defin-

ition excluded from this urgent caresafety net often extolled by politiciansopposed to universal coverage.

Faced with this profound injustice,to which the majority has so farproved immovable and apathetic,to use Rawlss phrase, the only re-maining question for someone con-templating civil disobedience iswhether there is a reasonable possibil-ity of success. Since direct civil dis-obedienceparticularly coming from

a respected professional groupismore compelling and effective thanthe indirect form, the question mustbe answered by trying to envision acampaign that directly violates thelaw deemed to be unjust, which inthis case would be Medicaid inclusioncriteria or associated costs ofMedicare/Medicaid.43

Practicalities of CivilDisobedience

Aphysician can obtain care for anunderinsured patient by embell-ishing diagnoses or exaggeratingseverity of illness. How to respond tothe problem of uninsured patients isconsiderably more complex. Thereare some noble creative solutions,such as forming a nonprofit health in-surance provider specializing in cover-ing the working poor,44 but in theend, even if they are successful, they

fail to directly address the problem. Ina sense, they grant legitimacy to thecurrent system by doing the govern-ments job for it.

Heres one possible way of achiev-ing the goal of basic health care for allAmericans: Suppose an uninsured pa-

tient cannot afford a necessary inter-vention, but he earns too much toqualify for Medicaid. In the absenceof any coverage, simply changing adiagnosis code accomplishes nothing,and there is no one to whom to ap-peal the implicit denial.

The physician is then faced with acase in which the government has amoral obligation to provide a givenservice but refuses to do so. One solu-tion would be to shift the costs of theuninsured patients care to a patient

insured by either Medicaid orMedicare, thereby reversing the tradi-tional direction of cost shifting.This would achieve the goal of get-ting the government to provide basichealth care to this individual (howev-er unwittingly), while at the sametime violating the False Claims Act.45

If done on an individual basis withthe hope of avoiding detection, suchan action would be classified as eva-sive noncompliance, as noted above.

However, if done with no attempt atconcealment and a willingness to paythe penalties called for by current law,this would qualify as direct civil dis-obedience.

The degree to which specific de-tails are made public would have tobe limited in order to safeguard theefficacy of the action. For instance, ifDr. Smith proclaimed his intention tobill the cost of life-saving surgery forMr. Jones (who is uninsured) to Mr.Browns account (who is a Medicaid

beneficiary and also a patient of Dr.Smiths), it would be fairly simple forMedicaid to simply reject the claimand immediately initiate a compli-ance investigation against Dr. Smith.In the end, no good would result.

But if all the physicians in a givenarea (including Dr. Smith) publiclyannounced their intention to billMedicaid for services provided totheir uninsured patients (including

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Mr. Jones), the government wouldhave no way of knowing if a givencharge for services for Mr. Brown(which Medicaid is obligated tocover) was provided to him or not.Certainly the expressed willingness ofa physician to bill incorrectly is not a

crime. It would likely lead to in-creased governmental oversight, but ifthe disobedience were taken up on awide enough basis, by enough physi-cians, governmental scrutiny of indi-vidual charges would quickly becomeimpractical.

The physicians involved wouldhave to be willing to suffer the conse-quences of their illegal actions. AsRawls writes, We must pay a certainprice to convince others that our ac-tions have, in our carefully considered

view, a sufficient moral basis in thepolitical convictions of the communi-ty.46 And the financial consequencesare significant,47 especially if borne byan individual physician rather thanby an institution (as would probablybe the case here, since few institutionsseem likely to participate in such anaction). Moreover, intentional viola-tion of government regulations couldlead to professional penalties (includ-ing suspension of ones medical li-

cense) and even incarceration.At the same time, collectivity is thestrongest defense. Just as the stategovernments of West Virginia andNew Jersey never thought to prose-cute the physicians who took part inthose strikes, or even to revoke theirmedical licenses, so also the federalgovernment almost certainly wouldnot prevent a substantial number ofphysicians from practicing medicinein a way that attempts to meet theneeds of a selectively underserved

population.Great care must be taken to avoidany public perception that the physi-cian might somehow profit from thisendeavor. After all, some might sim-ply say that a physician should pro-vide free medical care to any patientwho cannot afford it, even if it is notproperly his obligation do so. Thiscriticism has some merit, even though

it overlooks the fact that much of thecost of health care delivery lies out-side physician fees (medications, tests,and many other interventions and

services). To counter it, physiciansshould not keep any reimbursementthat may result from deceptivebilling. These usually meager fundsshould be redirected to amelioratingthe burden others have assumed(such as defraying Mr. Browns copay-ments or deductibles) and continuingthe battle through more conventionalchannels for health care reform.

There are also some significant im-plications for the uninsured patient,Mr. Jones, who receives care this way.

If charges for office visits or laborato-ry tests are billed to another account,record-keeping quickly becomesnightmarish. It might be necessary todevelop a second set of charts (akin topsychiatrists practice of keeping a setof personal notes separate from theofficial chart), which would likely besubject to subpoena.48 Other physi-cians might have difficulty treating

Mr. Jones if some of his records arefound under another patients name.

One might also raise the objectionthat if Mr. Jones receives essentiallyfree medical care in this manner, hemight be less likely to seek employ-ment that offers health insurance or

attempt to purchase his own cover-age. But since such an argumentcould just as easily be leveled at anyentitlementand indeed, oftenisit does not seem uniquely com-pelling in this case.

Perhaps the most interesting andcomplex agent in this case, though, isMr. Brown, the covered patient whoputs himself at risk to help a personhe might not even know. The argu-ment here assumes that such compas-sionate (understood literally) patients

take part voluntarily. An idealistmight view the risk taken by thephysician as part of his oath of of-fice. Mr. Brown, on the other hand,has taken no vow to help patients inneed, and by agreeing to take part inthis deception, he incurs many costs.His medical care would become morecomplex by virtue of another personsmedical records in his file. He wouldpay a financial penalty in the form ofcopayments and deductibles generat-

ed by the care of uninsured patients.Indeed, he could become an unin-sured patient himself if he were atsome point denied health insurancebecause of pre-existing conditionsthat he does not, in fact, have. Hiswillingness to engage in fraud mightwell be seen as complicity in thecrime, even if he took no active role(save, perhaps, accepting some levelof reimbursement from Dr. Smith forthe expenses he incurs).

The End Result

Let us assume that a bloc of physi-cians decided to engage in thisform of direct civil disobedience onbehalf of their uninsured patients andenough compassionate covered pa-tients agreed to participate. Whatmight be the end result? Given theopen nature of civil disobedience,

The physicians involvedwould have to be

willing to suffer the

consequences of their

illegal actions. As Rawls

writes, We must pay a

certain price to convince

others that our actions

have, in our carefully

considered view, a

sufficient moral basis in

the political convictions

of the community.

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federal authorities would be awarethat such a deception was takingplace. Investigations would be start-ed, records subpoenaed, and chargesfiled. Some physicians could facemonetary, professional, and criminalpenalties. But, as stated earlier, it

would be counterproductive for thegovernment to prosecute large num-bers of physicians for practicing high-quality (if deceptively billed) medi-cine.

The effect on medical record-keeping would verge on the cata-strophic. Government overseers andutilization review personnel examin-ing a patients chart would have noway of knowing if the patient hadother diagnoses or procedures thathad been billed to someone else (if

the patient was uninsured), or if someof the listed diagnoses and proceduresactually applied to someone else (ifthe patient was insured). The situa-tion could rapidly devolve into com-plete distrust of patient records andreliance only on patient recall for in-formation about the patients medicalhistory. Medical anarchy would reign.

If that happened, the battle wouldbe won. The injustices of the currentsystem (widely denied by defenders of

the status quo, who often have amonetary interest in opposing changeand certainly have excellent healthcoverage themselves) would be mani-fest in medical uncertainty, distrust,and unrest. Physicians would be ac-cused of improperly driving up healthcare costs (by expanding coverage toinclude the previously uninsured) anddestroying the health care system, butthey could deny the former and wel-come the latter. A just health care sys-tem must provide basic services, even

if costs increase. And it may not beaccurate to assume that costs will in-crease, as preventive and early inter-vention services might well save someof the expensive emergency care nowprovided to the uninsured. Ultimate-ly, the powers-that-be would beforced to admit that, much as theyoppose guaranteed universal cover-age, such a situation would be prefer-able to the chaos that might ensue.

Of course, one might wonderwhether the story spun out here is re-alistic. Would physicians really bandtogether to willfully violate Medicareand Medicaid laws that they had re-peatedly been told to obey? Wouldthey risk their livelihood for an illegal

act with uncertain outcome? Wouldenoughor anyinsured patientsput themselves at risk for the benefitof strangers?

The answer to these questions islikely no, but perhaps the very sug-gestion of such a plan is sufficient tostir up the waters of change. In 2003physicians in two states went onstrikesomething unthinkable notlong before. In 2004 the notion ofcivil disobedience began to be raisedanew in the literature, with an ac-

knowledgement that

as a group the medical professionmust sometimes force itself on po-litical processes that are failing toserve the health needs of our pa-tients. If doing so effectively meansusing organized civil disobediencefollowing careful debate withinprofessional deliberative structures,then that is what we should do.49

Then a concrete plan is set forth in a

respected journal to compel the gov-ernment to fulfill its obligation ofguaranteeing basic health care for allAmericans, under threat of medicalanarchy.

The threat itself may be enough toforce the government to realize thatwhile special interests (like the healthinsurance industry) have the money,physicians themselves have the powerto document and bill and therefore tochange the system. For the sake of thetens of millions of patients currently

without health insurance, physiciansmust be willing to risk much of whatthey hold dear: their reputations,their incomes, their status in society.Only through self-sacrifice will seachange be effected, but with suffi-cient devotion and commitment, thegoal is attainable. As Thoreau wrote,

Cast your whole vote, not a stripof paper merely, but your whole

influence. A minority is powerlesswhile it conforms to the majority;it is not even a minority then; butit is irresistible when it clogs by itswhole weight. If the alternative isto keep all just men in prison, orgive up war and slavery, the State

will not hesitate which to choose.50

References

1. American Medical Association, Opin-ion 1.02, The Relation of Law and Ethics,Code of Medical Ethics, Current Opinions(Chicago, Ill.: American Medical Associa-tion, 2002).

2. B. Lo, Resolving Ethical Dilemmas: AGuide for Clinicians (Baltimore, Md.:Williams and Wilkins, 1995), 228.

3. M.K. Wynia et al., Physician Manip-ulation of Reimbursement Rules for Pa-tients, Journal of the American Medical As-

sociation 283 (2000): 1858-65. Forms ofmanipulation included exaggerating theseverity of the patients condition, changingthe billing diagnosis, or reporting signs orsymptoms that patient did not have.

4. V.G. Freeman et al., Lying for Pa-tients: Physician Deception of Third-PartyPayers, Archives of Internal Medicine 159(1999): 2263-70.

5. G.C. Alexander et al., Support forPhysician Deception of Insurance Compa-nies among a Sample of Philadelphia Resi-dents, Annals of Internal Medicine 138(2003): 472-75.

6. J. Rawls, A Theory of Justice (Cam-bridge, Mass.: Belknap Press, 1971), 363.

7. S. Heffler et al., Health SpendingProjections through 2013, Web exclusive,Health Affairs (2004): 79-93, at http://content.healthaffairs.org/cgi/reprint/hlthaff.w4.79v1.pdf.

8. Physicians for a National Health Pro-gram, A National Health Program for theUnited States: A Physicians Proposal, NewEngland Journal of Medicine 320 (1989):102-108. A revised plan was published re-cently: The Physicians Working Group forSingle-Payer Health Insurance, Proposal ofthe Physicians Working Group for Single-

Payer National Health Insurance, Journalof the American Medical Association 290(2003): 798-805.

9. D.J. Palmisano, D.W. Emmons, andG.D. Wozniak, Expanding Insurance Cov-erage through Tax Credits, ConsumerChoice, and Market Enhancements: TheAmerican Medical Association Proposal forHealth Insurance Reform, Journal of theAmerican Medical Association 291 (2004):2237-42.

10. The National Health Security Plan of1993, otherwise known as the Clinton

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plan, is available at http://www.ibiblio.org/nhs/NHS-T-o-C.html.

11. The Health Insurance Association ofAmerica spent $17 million in 1993 on tele-vision commercials opposing the Clintonplan. See D. Bunis, The Harry and LouiseShow, www.salon.com, January 20, 2000,available at http://archive.salon.com/

health/log/2000/01/20/harry_and_louise/.12. J.F. Childress, Civil Disobedience,Conscientious Objection, and Evasive Non-compliance: A Framework for the Analysisand Assessment of Illegal Actions in HealthCare, Journal of Medicine and Philosophy10(1985): 63-83; see also Militant Morality:Civil Disobedience and Bioethics, specialsection in Hastings Center Report19, no. 6(1989): 23-45.

13. H.D. Thoreau, Walden and Civil Dis-obedience, ed. P. Lauter (Boston, Mass.:Houghton Mifflin, 2000): 22.

14. Associated Press, West Virginia Doc-tors Protest Insurance Costs, New York

Times(January 2, 2003); R. Hanley and M.Newman, New Jerseyans Expect DoctorsNot to Be In, New York Times(January 30,2003).

15. The Federal Trade Commission andthe Justice Department have consistentlydeemed self-employed physicians as inde-pendent contractors for whom striking isillegal according to the National Labor Rela-tions Act of 1935. In addition, a New Jerseylaw authorizing physicians to engage in col-lective bargaining with managed care plansspecifically excludes the right to strike: Theprovisions of this act shall not be construedto . . . permit two or more physicians . . . to

jointly engage in a coordinated cessation, re-duction or limitation of the health care . . .which they provide (Title 52:17B-207).

16. S. Wolfe, The Doctor DisciplineCrisis in New Jersey, at http://www.citi-zen.org/congress/civjus/medmal/articles.cfm.

17. Rawls, A Theory of Justice, 365. TheWest Virginia and New Jersey work stop-pages are actually instances of conscientiousobjection, rather than civil disobedience.

18. American Medical Association,AMA Code of Ethics (1994), athttp://www.ama-assn.org/ama/pub/catego-ry/8524.html.

19. Rawls, A Theory of Justice, 364.20. Childress, Civil Disobedience, Con-

scientious Objection, and Evasive Noncom-pliance, 67.

21. E.H. Morreim, Gaming the System:Dodging the Rules, Ruling the Dodgers,Archives of Internal Medicine 151 (1991):443-47.

22. Rawls, A Theory of Justice, 366.

23. Thoreau, Walden and Civil Disobedi-ence, 23.

24. Certain innovations with an extreme-ly narrow focus, such as so-called bou-tique or concierge medicine, bypass thehealth care finance system altogether. How-ever, given that they are focused principallyon patients of means, their underlying moti-vation does not appear to be altruistic. Theshift of some physicians back to a straightfee-for-service model often excludes patientswho could not afford insurance in the firstplace, and also makes no allowance for high-cost diagnostic and therapeutic procedures.(R. Lowes, No Coding, No InsuranceNo Kidding, Medical Economics81 [2004]:44-48.)

25. Childress, Civil Disobedience, Con-scientious Objection, and Evasive Noncom-pliance, 68-69.

26. H.B. Acton, Political Justification,in Civil Disobedience: Theory and Practice,ed. H.A. Bedau (New York: Pegasus, 1969),233.

27. M.L. King, Jr., Letter from Birming-

ham City Jail, in Civil Disobedience: Theoryand Practice, 73.


29. Ibid., 373.

30. Ibid., 373.

31. Ibid., 376.

32. See H.R. Spiers, AIDS and CivilDisobedience, Hastings Center Report 19,no. 6 (1989): 34-35.

33. P. Singer, To Do or Not to Do?Hastings Center Report19, no. 6 (1989): 42-44.

34. G. Leber, We Must Rescue Them,Hastings Center Report19, no. 6 (1989): 26-

27.35. The definition is in the American

Heritage Dictionary of the English Language,4th edition (New York: Houghton Mifflin,2000).

36. M. Moore, The Awful Truth (airdateApril 11, 1999).

37. Rawls, A Theory of Justice, 372-73.Given that the Difference Principle is, per-haps, the most innovative and most contro-versial component of Rawlss theory of jus-tice, the fact that it is not the foundation ofhis conception of civil disobedience broad-ens the applicability of his thought in thisarea.

38. U.S. Census Bureau, Health Insur-ance: 2003, at http://www.census.gov/hhes/hlthins/hlthin03/hlth03asc.html.

39. C. DeNavas-Walt, B.D. Proctor, andR.J. Mills, Income, Poverty, and Health Insur-ance Coverage in the United States: 2003,http://www.census.gov/prod/2004pubs/p60-226.pdf.

40. Families USA, One in Three: Non-Elderly Americans without Health Insur-ance, 2002-2003, June 2004, at http://www.familiesusa.org/site/DocServer/

82_million_uninsured_report.pdf?docID=3641.

41. P.B. Ginsburg, Can Hospitals andPhysicians Shift the Effects of Cuts inMedicare Reimbursement to Private Pay-ers? Web exclusive, Health Affairs (2003):473, at http://content.healthaffairs.org/cgi/reprint/hlthaff.w3.472v1.pdf.

42. D.G. Smith, Paying for Medicare: ThePolitics of Reform (New York: Aldine deGruyter, 1992).

43. For example, deductibles and copay-ments for managed care forms of these pro-grams, or premiums for Medicare Part B(and Part A, as well, if neither the patientnor their spouse has paid the Medicare pay-roll tax for at least ten years).

44. A. Marks, Medical Care Paid for inCashAnd Cheaper, Christian ScienceMonitor(April 7, 2004).

45. False Claims Act, 31 USC 3729-3733 (1998).


47. See J. Manier, U.S. Sues U of C inMedicare Overbilling: Liability Could RunUp to $100 Million, Chicago Tribune(March 14, 1999); P. Beluck, In Crack-down on Health Care Fraud, U.S. Focuseson Training Hospitals and Clinics, NewYork Times(December 22, 1995).

48. In re Estate of Bagus, 691 N.E. 2d 401(1998).

49. M.K. Wynia, Civil Obligations inMedicine: Does Professional Civil Disobe-dience Tear, or Repair, the Basic Fabric ofSociety? Virtual Mentor6 (January 2004),at http://www.ama-assn.org/ama/pub/cate-

gory/11780.html.50. Thoreau, Walden and Civil Disobedi-ence, 26.

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