Health Reform Reconstruction

69 Pages Posted: 7 Jan 2021 Last revised: 6 Jul 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 at Dartmouth; 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: 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 requires 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 these fixtures. This Article describes how health reform reconstruction can chart the path for legal change and proposes “confrontational incrementalism” as a method for recognizing the necessity of reconstructive reform, along with its near impossibility.

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 (2021). Georgia State University College of Law, Legal Studies Research Paper No. 2021-11, UC Davis Law Review, Forthcoming 2022, 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 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

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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