Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured

U.C. Davis Law Review, Vol. 24, No. 2, pp. 255-348, 1990

94 Pages Posted: 28 May 2009

See all articles by Mary Anne Bobinski

Mary Anne Bobinski

University of British Columbia (UBC) - Faculty of Law

Date Written: 1990

Abstract

From a policy perspective, the problem is how to provide health care for the uninsured or underinsured in a complex and competitive economic environment characterized by an unwillingness to commit either state or federal funds to new social programs. Policy initiatives will have to be shaped carefully to conform to interest group politics and fiscal constraints at the state and national level. From a legal perspective, the problem is also related to federalism. Federal preemption under the Employee Retirement Income Security Act (ERISA) presents a difficult hurdle for those attempting to craft state level solutions to the problems of the uninsured.

This Article's contribution to the ongoing debate is an analysis of ERISA preemption and its effect on state level solutions to the problems of the uninsured. The scope of the health care system's cost and access problems will be discussed in Section I. In Section II, the appropriate role of federal and state governments will be examined from the standpoint of both law and policy. Of particular interest will be the perverse obstacles to health care access created by ERISA, which preempts many state attempts to regulate employee health plans. Alternative state level solutions for the uninsured will be discussed in Section III. The innovative (and arguably doomed) approaches taken by Massachusetts and Washington will be compared. Finally, in Section IV, the Article concludes that specific federal statutory action is required, either through amendment of ERISA or adoption of a comprehensive federal access plan.

The health care system in the United States is plagued with serious distributional inequalities that prevent some from securing access to health care, and thus from securing access to health. Despite widespread public dissatisfaction with the current system, politicians have rejected a radical restructuring of the health care finance and delivery system, leaving incremental improvements as the only method for reducing inequities in access. The author concludes that a comprehensive federal solution presents the greatest potential for positive change. In the alternative, arguing for the creation of an ERISA waiver for state-level programs designed to improve access for the uninsured.

Keywords: Health insurance, Labor law preemption doctrine, Employee benefits, Federalism, Preemption (Legislative power), Medically uninsured persons

Suggested Citation

Bobinski, Mary Anne, Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured (1990). U.C. Davis Law Review, Vol. 24, No. 2, pp. 255-348, 1990. Available at SSRN: https://ssrn.com/abstract=1411237

Mary Anne Bobinski (Contact Author)

University of British Columbia (UBC) - Faculty of Law ( email )

1822 East Mall
Vancouver V6T 1Z1, British Columbia V6T 1Z1
Canada
604-822-2818 (Phone)

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