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

http://muse.jhu.edu/journals/hcr/summary/v035/35.1macauley.html

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 The Hippocratic
Civil Disobedience and Health Care Reform
Underground
by ROBERT MACAULEY
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.
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 should
supercede legal obligations.
—American Medical Association1
T
hroughout their training, physicians are
taught to play by the rules, especially when
those rules are the law of the land. In the era
of managed care, this includes accurate billing of
third-party payers, with the result that patients must
pay out-of-pocket for uncovered services. Bernard
Lo writes in his introductory textbook of medical
ethics, “There are strong ethical reasons for physi-
cians not to misrepresent the patient’s condition to
third parties. Physicians should keep in mind how
Robert Macauley, “The Hippocratic Underground: Civil Disobedi-
ence and Health Care Reform,” Hastings Center Report 35, no. 1
(2005): 38-45.
38 H A S T I N G S C E N T E R R E P O R T
misleading statements could undermine the doctor-
patient relationship and should seek constructive
ways 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 previous
year. The authors hypothesize that “these physicians
may see manipulation of reimbursement rules as an
indirect, or covert, form of patient advocacy and
even a professional obligation.”3 Another study
found that “physicians consistently assumed that so-
ciety would provide greater justification ratings [for
deception] than they would.”4 Indeed, 26 percent of
Philadelphians surveyed approved of a physician
misrepresenting a patient’s condition to secure fund-
ing for a necessary procedure, and this percentage
rose to 50 percent among those who felt physicians
did not have sufficient time to appeal coverage deci-
sions.5
January-February 2005
 Is violating the law in order to
provide necessary medical care ever
ethically justified? As John Rawls puts
it more generally: “At what point does
the duty to comply with laws enacted
by a legislative majority (or with exec-
utive acts supported by such a major-
ity) cease to be binding in view of the
right to defend one’s liberties and the
duty to oppose injustice?”6 Commen-
tators typically think about this ques-
tion by discussing individual cases—
should a physician deceive an insur-
ance company to benefit this patient
with these conditions. The question
should also be examined on a societal
basis, by appeal to the broader notion
of civil disobedience.
The Need for Reform
T he need to reform the United
States health care system has
long been recognized. Motivations
behind such reform range from re-
spect for human dignity (the United
States is the only developed nation
that does not guarantee basic health
care for all citizens), distributive jus-
tice (some citizens are privy to the
most advanced technologies in the
world, while others are deprived of
even the most basic services), and
economic pragmatism (health care
expenditures have risen from 10 per-
cent of Gross Domestic Product in
1985 to 15 percent in 2003 to a pro-
jected 18 percent in 20137). Well-
known proposals for reform include
the Physicians for a National Health
Program plan for universal coverage
through single-payer national health
insurance,8 expanded coverage
through tax credits and free market
reform,9 and universal coverage con-
taining elements of both methodolo-
gies.10 In the past, though, proposals
for universal coverage have failed
under a deluge of criticism from pro-
fessional organizations, including the
American Medical Association, and
intensive public relations campaigns
funded by groups with a financial in-
centive to maintain the status quo.11
Until recently, physicians advocat-
ing health care reform have acted pri-
January-February 2005
Recently, physicians
have shown a willingness
to work outside
conventional channels.
In 2003, thirty-nine
surgeons in West Virginia
and the majority of New
Jersey’s 22,000
physicians refused to
offer non-emergent care
unless certain regulatory
goals were met.
marily through “proper” channels,
such as publication, testimony before
government at various levels, lobby-
ing elected officials, and grass roots
mobilization. Prior to 2004, only a
handful of articles discussed civil dis-
obedience as it relates to the practice
of medicine, and none have done so
recently.12 Faced with such powerful
opposing special interests, most re-
formers ultimately fall into a category
for which Henry David Thoreau, in
his famous essay on the subject, had
only disdain:
They hesitate, and they regret, and
sometimes they petition; but they
do 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 a
cheap vote, and a feeble counte-
nance and God-speed, to the right,
as it goes by them.13
Recently, however, physicians have
shown a willingness to work outside
conventional channels. In January
and February 2003, thirty-nine sur-
geons in West Virginia and the ma-
jority of New Jersey’s 22,000 physi-
cians refused to offer non-emergent
care unless certain regulatory goals
were met, signaling a change in the
tone of the debate and the range of
tools physicians were willing to use.14
These work stoppages were illegal,15
and although they were temporary
and arguably moderate, they elicited
some strong reactions. Sidney Wolfe,
director of Public Citizen’s Health
Research Group, declared that “the
strike by doctors clearly violates the
AMA ethical code.”16
The work stoppages were not ex-
amples of civil disobedience, however,
for the physicians’ goal was to induce
the government to establish a ceiling
of $250,000 for pain and damage
awards in malpractice suits. As Rawls
writes, “Civil disobedience cannot be
grounded solely on group or self-in-
terest. Instead one invokes the com-
monly shared conception of justice
that underlies the political order.”17
There is some hint that the AMA
ethical code might tolerate some
forms of civil disobedience. As Wolfe
noted, the code is opposed to collec-
tive activities that might jeopardize
patients’ health, and it objects that
“strikes reduce access to care, elimi-
nate or delay necessary care, and in-
terfere with continuity of care. Each
of these consequences is contrary to
the physician’s ethic. Physicians
should refrain from the use of the
strike as a bargaining tactic.” But the
code also states that “collective activi-
ties aimed at ultimately improving
patient care may be warranted in
some circumstances, even if they cre-
ate inconvenience for the manage-
ment.”18 The question is whether
civil disobedience as a method of
protest and means to social change
rightly falls under the rubric of “col-
lective activities” that are appropriate
for physicians to engage in.
Definition of Civil
Disobedience
R awls has defined civil disobedi-
ence as “a public, nonviolent,
conscientious yet political act con-
HASTINGS CENTER REPORT 39
 trary to law usually done with the aim
of bringing about a change in the law
or policies of the government.”19 As
such, it presupposes a just society
(and is thus distinguishable from rev-
olution, which seeks to overthrow an
unjust society), and it respects the na-
ture of law itself.
There are three criteria for civil
disobedience: openness, nonviolence,
and submission.20 The open, public
nature of action is central to the effi-
cacy and moral authority of civil dis-
obedience, as its primary intention is
not to get away with violating the law
but to bring about reform of the law.
In a medical context, then, civil dis-
obedience is entirely distinct from
“gaming the system,” which attempts
to “skirt resource rules while appear-
ing to comply with them.”21 Because
civil disobedience is nonviolent and
passive, participants are willing to ac-
cept the appropriate punishment for
violating a law which they feel is un-
just—as Mohandas Gandhi and Mar-
tin Luther King, Jr., famously
demonstrated. Rawls writes, “The
law is broken, but fidelity to law is ex-
pressed by the public and nonviolent
nature of the act, by the willingness to
accept the legal consequences of one’s
conduct.”22
Disobedience may be either direct
or indirect. In the direct form, pro-
testers violate the law that they find
objectionable. They might, for exam-
ple, hand out clean needles to addicts
to prevent the spread of HIV. In indi-
rect civil disobedience, laws unrelated
to the one in question are violated.
Protesters who block intersections are
probably not objecting to traffic regu-
lations. They are trying to raise
awareness about an unrelated law that
they perceive to be unjust.
For physicians, indirect civil dis-
obedience is neither sufficient nor
practical. In the first place, indirect
civil disobedience achieves no imme-
diate benefit. By contrast, physicians
engaging in direct civil disobedience
would violate federal laws precisely in
order to procure medications and ser-
vices for people who need them and
would otherwise be deprived of them.
40 H A S T I N G S C E N T E R R E P O R T
In addition, the political potency of
direct action is infinitely greater, for
the general public (and hence the
government) places a much higher
premium on the orderly workings of
the health care delivery system than,
for example, on the smooth flow of
traffic at the corner of Main and Elm
Streets.
Since both forms of civil disobedi-
ence involve active protest of an un-
just law, they are usually distin-
guished from simply refraining to
participate in those laws, which is
conscientious objection. One of the
most famous proponents of conscien-
tious objection is Thoreau, who ar-
gued that
it is not a man’s duty, as matter of
course, to devote himself to the
eradication of any, even the most
enormous, wrong; he may still
properly have other concerns to
engage him; but it is his duty, at
least, 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 role
in health care reform, though. Simply
by engaging in the practice of medi-
cine, physicians implicitly take part in
the health care finance system. To
“wash their hands of it” would require
ceasing to practice medicine, which
could only harm the patients they
had previously pledged to treat.24
A final type of disobedience,
which Childress terms “evasive non-
compliance,” involves direct violation
of laws but is neither open nor sub-
missive. It simply seeks to avoid injus-
tice rather than to reform the system
that perpetuates the injustice. Chil-
dress cites the Underground Railroad
as an example.25 “Gaming the system”
could 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. As
H.B. Acton notes, “When disobedi-
ence is accompanied by submission to
legal penalties the distinction between
ambition and personal integrity is
marked as closely as it can be.”26
Justifying Civil Disobedience
N ot every perceived injustice mer-
its civil disobedience. Several
preconditions must be met. The first
of these, according to King, is the
“collection of the facts to determine
whether injustices are alive.”27 For
Rawls, one such injustice is the viola-
tion of the principle of fair equality of
opportunity: “The meaning of equal-
ity is specified by the principles of jus-
tice which require that equal basic
rights be assigned to all persons.”28
This precondition rests on the ques-
tion of whether health care is a right
or a privilege. If it is merely a com-
modity that may be purchased by
those with sufficient means to do so,
then no moral law is violated by not
providing basic medical care to all
persons in a society. However, if
health care is deemed a basic human
right, yet a substantial subset of the
population is unable to purchase it,
then the government’s failure to pro-
vide it would constitute substantial
and clear injustice.
The second precondition is “that
the normal appeals to the political
majority have already been made in
good faith and that they have
failed.”29 King describes this step as
“negotiation.” Attempts to provide
basic medical care to all Americans by
Physicians for a National Health Pro-
gram and the Clinton administration,
in 1989 and 1993 respectively, were
unsuccessful. However, the PNHP
revision promulgated in 2003 and the
AMA proposal of 2004 have yet to be
seriously considered. Thus some
might say that legal means of reform
have not been exhausted.
Yet even if some legal options re-
main, this does not preempt civil dis-
obedience. “If past actions have
shown the majority immovable or ap-
athetic,” writes Rawls, “further at-
tempts may reasonably be thought
fruitless, and a second condition for
justified civil disobedience is met.”30
Given the opposition to guaranteed
January-February 2005
universal coverage by the health in-
surance industry and the proponents
of limited government who decry yet
another “entitlement,” reform
through normal political channels
“may reasonably be thought fruit-
less.”
Finally, the specific form of civil
disobedience being considered must
carry with it some reasonable possi-
bility of success. Rawls writes, “Since
civil disobedience is a mode of ad-
dress taking place in the public
forum, care must be taken to see that
it is understood.”31 Given the nega-
tive responses to the physicians’
strikes of 2003 and the potential for
misconstruing the purpose of civil
disobedience—whether through sim-
ple misunderstanding or because of
propaganda from opposing special in-
terest groups—this final caveat is ex-
tremely important.
Civil Disobedience and Health
Care Reform
A s it relates to the practice of med-
icine, civil disobedience has his-
torically been carried out to support
minority groups who either were ig-
nored by the majority (such as when
women called for birth control in the
early twentieth century and persons
with AIDS demanded additional
funding in the late twentieth centu-
ry32) or were simply unable to speak
for themselves (as in animal rights33
and anti-abortion protests34). The
same can be said for other areas of
medicine that, though they fall out-
side the scope of this paper, might
lend themselves to civil disobedience,
such as the use of medical marijuana
and the needle exchange programs
mentioned above. And the same
seems to be true of using civil disobe-
dience to agitate for universal cover-
age; the rights in question pertain to a
substantial minority group with little
political voice or power.
The most obvious way physicians
might engage in direct civil disobedi-
ence to improve health care financing
is to manipulate billing systems in
order to fund necessary but uncov-
January-February 2005
ered evaluations and interventions.
One must distinguish, however, both
between private and government-
funded insurance, and between insuf-
ficient coverage and complete lack of
coverage.
As long as one is evaluating private
insurance, complete lack of coverage
presents no moral dilemma. For even
if there exists a basic human right to
health care, no private company has a
moral obligation to provide it for a
specific person. Not only would it be
arbitrary to pick any one health insur-
ance company to fund an uncovered
patient’s costs, but it would siphon
The government is a
legitimate 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.
off funds that should be directed to-
ward the care of patients already en-
rolled in the company.
There have been well-publicized
cases of insufficient coverage, such as
HMOs refusing so-called “experi-
mental” therapies or rejecting poten-
tially life-saving interventions on a
cost/benefit analysis. Also, in markets
with a limited range of options, pa-
tients may be forced to enroll in a
plan whose benefits fall short of
“basic health care.” But these also are
not appropriate contexts for civil dis-
obedience. No law is broken as long
as the private insurer lives up to the
formal agreement with the insured
patient. Further, even if the insurer
should cover the excluded service, or if
the patient believed that the therapy
would be covered, the case does not
fall under the rubric of civil disobedi-
ence properly understood, because
civil disobedience is defined as “a po-
litical act” designed to change “the
law or policies of the government.”
In such a case, the concerned
physician has two options: evasive
noncompliance (that is, “gaming the
system,” with the inherent danger of
depriving other patients of resources
owed them), or the private sector
equivalent of civil disobedience,
which some have called “direct ac-
tion.” Defined as “the strategic use of
immediately effective acts, such as
strikes, demonstrations, or sabotage,
to achieve a political or social end,”
this kind of direct action differs from
direct civil disobedience in that it
does not appeal to government to
change laws.35 It attempts to compel a
private group to change its policies.
When the documentarian Michael
Moore picketed the offices of an
HMO that initially refused a life-sav-
ing pancreas transplant to one of its
policy holders, he was engaging in
this kind of direct action. By evoking
a public outcry and generating nega-
tive publicity, Moore pressured the
company into changing its policy on
“experimental” therapy, at least in
that case.36
The government is a legitimate
target for civil disobedience precisely
because, if there is a universal human
right to basic health care, it is the gov-
ernment that incurs an obligation to
provide it. In terms of insufficient
coverage, though, the question must
be asked: What degree of health care
can properly be deemed a basic
human right? One might argue that
basic preventive care, emergency care,
and short-term, clearly efficacious
life-saving treatment are basic human
rights. But what of expensive thera-
pies that have only a modest chance
of success? In terms of preventive
care, how often must expensive
screening procedures like
colonoscopy be performed to meet
the condition of “basic health care”?
Clearly there is an extreme to be
HASTINGS CENTER REPORT 41
 avoided, for certain purely elective
procedures (such as cosmetic surgery)
could never be considered an obliga-
tion for the government to provide.
Objections over such matters of
degree rarely rise to the level of civil
disobedience. Rawls himself admits
that violations of what he calls the
“Difference Principle,” which states
that “social and economic inequalities
. . . are just only if they result in com-
pensating benefits for everyone, and
in particular for the least advantaged
members of society,” do not lend
themselves as easily to civil disobedi-
ence. He writes, “The resolution of
these issues is best left to the political
process provided that the requisite
equal liberties are secure.”37
Even when one determines that an
injustice has occurred in government-
funded care, the third requirement
for civil disobedience—that there be a
reasonable possibility of success—
may 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, she
will have to convince not only her
peers of the injustice but also the
public at large. And unlike the mil-
lions of Americans who lack any
health insurance whatsoever, the sev-
enty-six million who are covered, if
inadequately, by Medicare and Med-
icaid38 are less likely to evoke suffi-
cient sympathy and outrage to win
over very many citizens.
There remains the significant
problem of those who lack health in-
surance altogether. Forty-five million
Americans (including eight million
children) had no health insurance in
2003,39 and nearly eighty-two million
were uninsured for some part of
2002-2003.40 When politicians pro-
claim that all Americans have access
to basic health services, they are
speaking primarily of emergency care
and ignoring the fact that, even if it is
available, it comes at a steep price.
The patient who receives emergency
care can safely expect to receive size-
able bills, and to be eagerly pursued
42 H A S T I N G S C E N T E R R E P O R T
by hospitals and, ultimately, collec-
tion agencies.
In point of fact, the uninsured pa-
tient will be charged more for the
treatment he receives than would a
private insurance company or the
government, as both of those entities
utilize “cost shifting” to reduce their
expenditures. Cost shifting, defined
as “the phenomenon in which
changes in administered prices of one
payer lead to compensating changes
in prices charged to other payers,”41
increases fees to uninsured patients in
order to compensate for reduced fees
paid by governmental and private in-
surers, which are achieved through
governmental regulation42 and a vari-
ation of “collective bargaining,” re-
spectively. Preventive care is by defin-
ition excluded from this “urgent care”
safety net often extolled by politicians
opposed to universal coverage.
Faced with this profound injustice,
to which the majority has so far
proved “immovable and apathetic,”
to use Rawls’s phrase, the only re-
maining question for someone con-
templating civil disobedience is
whether there is a reasonable possibil-
ity of success. Since direct civil dis-
obedience—particularly coming from
a respected professional group—is
more compelling and effective than
the indirect form, the question must
be answered by trying to envision a
campaign that directly violates the
law deemed to be unjust, which in
this case would be Medicaid inclusion
criteria or associated costs of
Medicare/Medicaid.43
Practicalities of Civil
Disobedience
A physician can obtain care for an
underinsured patient by embell-
ishing diagnoses or exaggerating
severity of illness. How to respond to
the problem of uninsured patients is
considerably more complex. There
are some noble creative solutions,
such as forming a nonprofit health in-
surance provider specializing in cover-
ing “the working poor,”44 but in the
end, even if they are successful, they
fail to directly address the problem. In
a sense, they grant legitimacy to the
current system by doing the govern-
ment’s job for it.
Here’s one possible way of achiev-
ing the goal of basic health care for all
Americans: Suppose an uninsured pa-
tient cannot afford a necessary inter-
vention, but he earns too much to
qualify for Medicaid. In the absence
of any coverage, simply changing a
diagnosis code accomplishes nothing,
and there is no one to whom to ap-
peal the implicit denial.
The physician is then faced with a
case in which the government has a
moral obligation to provide a given
service but refuses to do so. One solu-
tion would be to shift the costs of the
uninsured patient’s care to a patient
insured by either Medicaid or
Medicare, thereby reversing the tradi-
tional direction of “cost shifting.”
This would achieve the goal of get-
ting the government to provide basic
health care to this individual (howev-
er unwittingly), while at the same
time violating the False Claims Act.45
If done on an individual basis with
the hope of avoiding detection, such
an action would be classified as “eva-
sive noncompliance,” as noted above.
However, if done with no attempt at
concealment and a willingness to pay
the 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 to
be limited in order to safeguard the
efficacy of the action. For instance, if
Dr. Smith proclaimed his intention to
bill the cost of life-saving surgery for
Mr. Jones (who is uninsured) to Mr.
Brown’s account (who is a Medicaid
beneficiary and also a patient of Dr.
Smith’s), it would be fairly simple for
Medicaid to simply reject the claim
and immediately initiate a compli-
ance investigation against Dr. Smith.
In the end, no good would result.
But if all the physicians in a given
area (including Dr. Smith) publicly
announced their intention to bill
Medicaid for services provided to
their uninsured patients (including
January-February 2005
Mr. Jones), the government would
have no way of knowing if a given
charge for services for Mr. Brown
(which Medicaid is obligated to
cover) was provided to him or not.
Certainly the expressed willingness of
a physician to bill incorrectly is not a
crime. It would likely lead to in-
creased governmental oversight, but if
the disobedience were taken up on a
wide enough basis, by enough physi-
cians, governmental scrutiny of indi-
vidual charges would quickly become
impractical.
The physicians involved would
have to be willing to suffer the conse-
quences of their illegal actions. As
Rawls writes, “We must pay a certain
price to convince others that our ac-
tions have, in our carefully considered
view, a sufficient moral basis in the
political convictions of the communi-
ty.”46 And the financial consequences
are significant,47 especially if borne by
an individual physician rather than
by an institution (as would probably
be the case here, since few institutions
seem likely to participate in such an
action). Moreover, intentional viola-
tion of government regulations could
lead to professional penalties (includ-
ing suspension of one’s medical li-
cense) and even incarceration.
At the same time, collectivity is the
strongest defense. Just as the state
governments of West Virginia and
New Jersey never thought to prose-
cute the physicians who took part in
those strikes, or even to revoke their
medical licenses, so also the federal
government almost certainly would
not prevent a substantial number of
physicians from practicing medicine
in a way that attempts to meet the
needs of a selectively underserved
population.
Great care must be taken to avoid
any public perception that the physi-
cian might somehow profit from this
endeavor. After all, some might sim-
ply say that a physician should pro-
vide free medical care to any patient
who cannot afford it, even if it is not
properly his obligation do so. This
criticism has some merit, even though
January-February 2005
The physicians involved
would 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.”
it overlooks the fact that much of the
cost of health care delivery lies out-
side physician fees (medications, tests,
and many other interventions and
services). To counter it, physicians
should not keep any reimbursement
that may result from deceptive
billing. These usually meager funds
should be redirected to ameliorating
the burden others have assumed
(such as defraying Mr. Brown’s copay-
ments or deductibles) and continuing
the battle through more conventional
channels 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 becomes
nightmarish. It might be necessary to
develop a second set of charts (akin to
psychiatrists’ practice of keeping a set
of “personal notes” separate from the
official chart), which would likely be
subject to subpoena.48 Other physi-
cians might have difficulty treating
Mr. Jones if some of his records are
found under another patient’s name.
One might also raise the objection
that if Mr. Jones receives essentially
free medical care in this manner, he
might be less likely to seek employ-
ment that offers health insurance or
attempt to purchase his own cover-
age. But since such an argument
could just as easily be leveled at any
“entitlement”—and indeed, often
is—it does not seem uniquely com-
pelling in this case.
Perhaps the most interesting and
complex agent in this case, though, is
Mr. Brown, the covered patient who
puts himself at risk to help a person
he might not even know. The argu-
ment here assumes that such compas-
sionate (understood literally) patients
take part voluntarily. An idealist
might view the risk taken by the
physician as part of his “oath of of-
fice.” Mr. Brown, on the other hand,
has taken no vow to help patients in
need, and by agreeing to take part in
this deception, he incurs many costs.
His medical care would become more
complex by virtue of another person’s
medical records in his file. He would
pay a financial penalty in the form of
copayments and deductibles generat-
ed by the care of uninsured patients.
Indeed, he could become an unin-
sured patient himself if he were at
some point denied health insurance
because of pre-existing conditions
that he does not, in fact, have. His
willingness to engage in fraud might
well be seen as complicity in the
crime, even if he took no active role
(save, perhaps, accepting some level
of reimbursement from Dr. Smith for
the expenses he incurs).
The End Result
L et us assume that a bloc of physi-
cians decided to engage in this
form of direct civil disobedience on
behalf of their uninsured patients and
enough compassionate covered pa-
tients agreed to participate. What
might be the end result? Given the
open nature of civil disobedience,
HASTINGS CENTER REPORT 43
 federal authorities would be aware
that such a deception was taking
place. Investigations would be start-
ed, records subpoenaed, and charges
filed. Some physicians could face
monetary, professional, and criminal
penalties. But, as stated earlier, it
would be counterproductive for the
government 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 and
utilization review personnel examin-
ing a patient’s chart would have no
way of knowing if the patient had
other diagnoses or procedures that
had been billed to someone else (if
the patient was uninsured), or if some
of the listed diagnoses and procedures
actually applied to someone else (if
the patient was insured). The situa-
tion could rapidly devolve into com-
plete distrust of patient records and
reliance only on patient recall for in-
formation about the patient’s medical
history. Medical anarchy would reign.
If that happened, the battle would
be won. The injustices of the current
system (widely denied by defenders of
the status quo, who often have a
monetary interest in opposing change
and certainly have excellent health
coverage themselves) would be mani-
fest in medical uncertainty, distrust,
and unrest. Physicians would be ac-
cused of improperly driving up health
care costs (by expanding coverage to
include the previously uninsured) and
destroying the health care system, but
they 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 be
accurate to assume that costs will in-
crease, as preventive and early inter-
vention services might well save some
of the expensive emergency care now
provided to the uninsured. Ultimate-
ly, the powers-that-be would be
forced to admit that, much as they
oppose guaranteed universal cover-
age, such a situation would be prefer-
able to the chaos that might ensue.
44 H A S T I N G S C E N T E R R E P O R T
Of course, one might wonder
whether the story spun out here is re-
alistic. Would physicians really band
together to willfully violate Medicare
and Medicaid laws that they had re-
peatedly been told to obey? Would
they risk their livelihood for an illegal
act with uncertain outcome? Would
enough—or any—insured patients
put themselves at risk for the benefit
of strangers?
The answer to these questions is
likely no, but perhaps the very sug-
gestion of such a plan is sufficient to
stir up the waters of change. In 2003
physicians in two states went on
strike—something unthinkable not
long before. In 2004 the notion of
civil disobedience began to be raised
anew in the literature, with an ac-
knowledgement that
as a group the medical profession
must sometimes force itself on po-
litical processes that are failing to
serve the health needs of our pa-
tients. If doing so effectively means
using organized civil disobedience
following careful debate within
professional 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 of
guaranteeing basic health care for all
Americans, under threat of medical
anarchy.
The threat itself may be enough to
force the government to realize that
while special interests (like the health
insurance industry) have the money,
physicians themselves have the power
to document and bill and therefore to
change the system. For the sake of the
tens of millions of patients currently
without health insurance, physicians
must be willing to risk much of what
they hold dear: their reputations,
their incomes, their status in society.
Only through self-sacrifice will sea
change be effected, but with suffi-
cient devotion and commitment, the
goal is attainable. As Thoreau wrote,
Cast your whole vote, not a strip
of paper merely, but your whole
influence. A minority is powerless
while it conforms to the majority;
it is not even a minority then; but
it is irresistible when it clogs by its
whole weight. If the alternative is
to keep all just men in prison, or
give up war and slavery, the State
will not hesitate which to choose.50
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provisions of this act shall not be construed
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Given that the Difference Principle is, per-
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HASTINGS CENTER REPORT 45