Health Reform Reconstruction

63 Pages Posted: 7 Jan 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: January 5, 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, an intellectually cramped “iron triangle” ethos has constrained health reform conceptually. The iron triangle centered individual interests in access to, quality of, and cost of medical care, while marginalizing equity and public health. In the iron triangle era, reforms unquestioningly accommodated four entrenched fixtures of American law—individualism, fiscal fragmentation, privatization, and federalism—that distort and diffuse any reach toward justice and solidarity. The profound racial disparities and public health failures of the U.S. pandemic response in 2020 agonizingly manifested the limitations of pre-2020 health reform and demand a reconstruction.

Health reform reconstruction begins with the replacement of the iron triangle era with a new era in which reforms aim to realize health justice. Health justice does not itself overcome the fixtures of American law that constrain reform and propagate subordination. But it reveals the importance of doing so, despite the fixtures’ stubborn legal and logistical entrenchment. Because health reformers can no longer accept any conceptual goal short of health justice, incremental reforms must be measured chiefly by whether they confront or accommodate individualism, fiscal fragmentation, privatization, and federalism in health care. Through an uncompromising conceptual aspiration and a method of confrontational incrementalism focused on dismantling the legal structures that stand in the way of health justice, health reform reconstruction is possible. The Article describes how health reform reconstruction can chart the path of legal change and reflects on the usefulness of its methodology of confrontational incrementalism in other fields which recognize the necessity of reconstructive reform, along with its near impossibility, such as policing and drug policy.

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 (January 5, 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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