Health Reform Reconstruction

Elizabeth Y. McCuskey - University of Massachusetts School of Law
Erin C. Fuse Brown - Georgia State University College of Law
Lindsay F. Wiley - American University Washington College of Law
Matthew B. Lawrence - Emory University School of Law
Vol. 55
December 2021
Page 657

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.
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