Social Solidarity in Health Care, American-Style

Journal of Law, Medicine, & Ethics, Vol. 48, 2020 Forthcoming

Georgia State University College of Law, Legal Studies Research Paper No. 2020-10

28 Pages Posted: 3 Sep 2020 Last revised: 3 Nov 2020

See all articles by Erin C. Fuse Brown

Erin C. Fuse Brown

Georgia State University College of Law

Matthew B. Lawrence

Emory University School of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

Elizabeth Y. McCuskey

University of Massachusetts School of Law at Dartmouth; Center for Health Law Studies

Lindsay F. Wiley

American University - Washington, College of Law

Date Written: August 1, 2020

Abstract

The Affordable Care Act (ACA) reflected a significant philosophical shift in the United States from distributing costs associated with sickness based on the principle of actuarial fairness toward a social solidarity principle premised on the “goals of mutual aid and support.”[i] Yet four fixtures of American health care law complicate the translation of the solidarity ethic into real-world outcomes: (1) federalism, (2) fiscal pluralism, (3) reliance on private ordering and private markets for health coverage, and (4) an emphasis on individual rights and personal responsibility. The ACA’s approach to operationalizing solidarity insufficiently accounted for these fixtures. This ultimately limited its success and continues to threaten its durability, in ways laid bare by the 2020 coronavirus pandemic. After tracing the philosophical evolution of health care law in the United States toward the ethic of social solidarity, this article identifies four legal fixtures of the American health care system in tension with it. Assessing the degrees to which the ACA, Medicare-for-All, and public-option proposals confront these fixtures reveals trade-offs in policy design with which reformers hoping to enhance solidarity must grapple. Health reform must navigate through the fixtures to effectuate an American version of social solidarity in health care. Successfully charting this course may demand that reformers set their sights beyond the modest aim of universal coverage and embrace a broader health justice goal.[ii] Social solidarity in health care requires more than just getting everyone covered in fragmented health insurance pools—it requires a commitment to mutual support and a sense that the benefits and burdens of illness and our system for treating and preventing it should be shared by all in a way that is fair and just. Though the four fixtures make the path toward social solidarity in health care more challenging in the U.S., taking seriously the need to accommodate, leverage, or overcome the fixtures can help to build a mutually-funded health care system that is both durable and distinctively American. This article’s exposition of the fixtures of American health care law and the trade-offs they force in pursuit of social solidarity offers a framework for discussion among lawmakers, policy advisers, scholars, researchers, and voters as they take the next steps in health reform.

Keywords: health care, health law, health insurance, Affordable Care Act, universal health insurance, health justice, health equity, health policy

JEL Classification: I13, I18, K32

Suggested Citation

Fuse Brown, Erin C. and Lawrence, Matthew B. and McCuskey, Elizabeth Y. and Wiley, Lindsay Freeman, Social Solidarity in Health Care, American-Style (August 1, 2020). Journal of Law, Medicine, & Ethics, Vol. 48, 2020 Forthcoming, Georgia State University College of Law, Legal Studies Research Paper No. 2020-10, Available at SSRN: https://ssrn.com/abstract=3680902

Erin C. Fuse Brown (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Matthew B. Lawrence

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Elizabeth Y. McCuskey

University of Massachusetts School of Law at Dartmouth ( email )

333 Faunce Corner Road
North Dartmouth, MA 02747-1252
United States

Center for Health Law Studies ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

Lindsay Freeman Wiley

American University - Washington, College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

HOME PAGE: http://www.wcl.american.edu/faculty/wiley/

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