Against the 'Safety Net'

Abstract

Jack Kemp and Ronald Reagan originated the ‘safety net’ conception of United States health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the “social safety net of programs” for those with “true need.” Legal scholars have adopted their metaphor widely and uncritically. This Essay deconstructs the ‘safety net’ metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the ‘safety net’ as comprising morality-tested subsistence programs (as did Kemp and Reagan) but others understand it as comprising all subsistence programs (whether reserved for those with “true need” or not), or both subsistence programs and poverty-prevention programs, or even the full panoply of laws that affect in any way the human ecosystem in which people live, die, sometimes get sick, and sometimes get help. Moreover, the vision the metaphor conjures of laws springing to action to rescue an independent individual should she fall contradicts feminist and communitarian conceptions of the subject of regulation. Relatedly, this vision of law as net reifies laws involved in rescue but not those involved in preventing harm, building resilience, or promoting equality, thereby hiding social and structural determinants of health and inequality and taking sides on difficult prioritization questions raised by acknowledging such determinants. In light of these arguments against the ‘safety net,’ the Essay endorses the ‘ecosystem’ and other alternative terms that highlight rather than elide unresolved questions about the means and ends of health and welfare laws.

Keywords: entitlements, health law, public health, family law, welfare law