Health Reform Reconstruction

66 Pages Posted: 7 Jan 2021 Last revised: 19 Mar 2021

See all articles by Lindsay F. Wiley

Lindsay F. Wiley

American University - Washington, College of Law

Elizabeth Y. McCuskey

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

Matthew B. Lawrence

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

Erin C. Fuse Brown

Georgia State University College of Law

Date Written: March 18, 2021

Abstract

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades – and calls for reconstruction. For more than a half-century, a cramped “iron triangle” ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures—individualism, fiscal fragmentation, privatization, and federalism—that distort and diffuse any reach toward social justice. The profound racial disparities and public health failures of the U.S. pandemic response have agonizingly manifested the limitations of pre-2020 health reform and demand a reconstruction.

Health reform reconstruction begins with a new conceptual framework that aims to realize health justice. Health justice demands commitments to anti-racism, equitable distribution of the burdens and benefits of public investments in health care and public health (for which health care access, quality, and cost are useful, but not exhaustive, metrics), and community empowerment. These commitments put health justice on a collision course with the fixtures of individualism, fiscal fragmentation, privatization, and federalism. Thus, incremental reforms must be measured by the extent to which they confront or accommodate these fixtures. The Article describes how health reform reconstruction can chart the path for legal change and proposes “confrontational incrementalism” as a method that may prove useful to reformers who recognize the necessity of reconstructive reform, along with its near impossibility, in domains that range far beyond health care.


Keywords: health reform, health policy, federalism, privatization, health disparities, racism, health justice

JEL Classification: I13, I18, K32

Suggested Citation

Wiley, Lindsay Freeman and McCuskey, Elizabeth Y. and Lawrence, Matthew B. and Fuse Brown, Erin C., Health Reform Reconstruction (March 18, 2021). Georgia State University College of Law, Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3760086

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/

Elizabeth Y. McCuskey

University of Massachusetts School of Law ( email )

333 Faunce Corner Rd
Dartmouth, MA 02747
United States

Center for Health Law Studies ( email )

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

Erin C. Fuse Brown (Contact Author)

Georgia State University College of Law ( email )

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

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