By Elizabeth McCuskey
Health justice is the lodestar we need for the next generation of health reform. It centers justice as the destination for health care regulation and supplies the conceptual framework for assessing our progress toward it. It does so by judging health reforms on their equitable distribution of the burdens and benefits of investments in the health care system, and their abilities to improve public health and to empower subordinated individuals and communities. Refocusing health reform on a health justice gestalt has greater urgency than ever, given the scale of injustice in our health care system and its tragic, unignorable consequences during the coronavirus pandemic.
The most recent generation of health reform, culminating in the ACA, sought the grail of reducing per capita costs while simultaneously improving medical care and population health. This balance of cost, quality, and access is known in healthy policy as the “triple aim” or the “iron triangle.” The inequitable burden of disease, viewed within this framework of tradeoffs, suggests that broadening access to higher-quality care might ultimately reduce system-wide cost. But reforms’ pursuit of that balance, and the accommodations made to strike it, fell fatally short of justice. As Lindsay Wiley, Matthew Lawrence, Erin Fuse Brown, and I have argued, health reform requires a reconstruction, shedding the iron triangle’s narrow vision that has entrenched inequalities even as it expanded public funding for medical care. Health justice offers a principled ethos for that reconstruction – one that meets the existential scale of the problems health care regulation must confront.
The health justice lodestar is particularly vital given the incrementalism endemic to U.S. health law. Even at its most transformative moments, U.S. health care legislation has proceeded in increments. Medicare and Medicaid revolutionized health care finance, but only for discretely-defined populations. Despite the political polarity surrounding it, the ACA added only incrementally to the existing sources of health care finance and regulation, directly subsidizing individuals’ purchase of private insurance, preserving the predominance of employer-sponsored insurance, and expanding the existing Medicaid program. The ACA thus built on a fragmentary system that reflected an accumulation of even smaller reform increments. For example, EMTALA in 1986 prohibited Medicare-funded emergency rooms from “dumping” patients. COBRA in 1985 dictated that folks can pay to stay on their employer-sponsored health plan after leaving employment. Each piece of legislation reacted to an existing problem in the health care system, while doing nothing to address the racial disparities in medical care or the inequities perpetuated by linking health insurance to employment which plagued that system.
The current political climate suggests that future health reforms will proceed in increments, too. That could be a good thing, as long as the increments themselves promote health justice. Setting health justice as the lodestar of reform prompts us to ask critical questions: Toward what end does this increment advance? And does this increment accommodate or confront the structures of injustice? Interrogating incremental reform through a method described as “confrontational incrementalism” assesses whether a proposed increment is a stepping stone toward health justice or a stumbling block that entrenches the fixtures that ultimately impede progress.
Consider the current range of public option reforms as an illustration. In concept, a public option advances toward health justice even though that reform alone does not fully achieve it. In reality, the various design features for a public option dictate how far towards health justice this increment can advance. A federal public option would confront the federalism issues and fragmentation that have supercharged disparities. But a public option offered solely through the insurance exchanges and administered by private health insurers would exclude Medicaid beneficiaries and undocumented immigrants, as well as reinforce the existing roles of employer-sponsored insurance and privatization. It might end up making no progress at all. Worse, it could hinder long-term efforts if its enactment consumes all the health policy energy in the room, leaving little will to purse more transformative reforms.
Similarly, state public options offer smaller-scale incremental reforms that, while promising as cost-control devices, have limited potential to expand access. As the data generated from these modest state experiments percolate to federal policymakers, the public option may become ossified as a cost-control measure that does little to advance health justice. Or it may encourage state experiments with bigger, better public options. In all of these efforts, confrontational incrementalism requires vigilance for the long arc of health reform while responding to immediate demands.
Setting health justice as the lodestar for health reform also recasts the iron triangle as a navigational instrument in future health reforms, rather than their driving force. The iron triangle’s observations about the inevitability of resource constraints in health care, and the relationships among population health, medical care, and cost can aid the design of reforms, but they cannot themselves sustain the necessary reconstruction. Instead, health justice recognizes cost, quality, and access as crucial, but not exhaustive, metrics of just distribution in health care. Further, health justice aims not only for the just distribution of the benefits and burdens of health care, but also for participatory justice through community empowerment and restorative justice through recognition of past injustices.
Health justice as a lodestar, with its aims of equity, empowerment, and restoration, holds focus on the broader endeavor of protecting and promoting human health through tempestuous politics and the headwinds of legislative incrementalism.
Elizabeth McCuskey is a professor at the UMass School of Law.
