Health Law and Democracy

Abstract

Current political divisions are destabilizing existing laws affecting the health field. Major changes in the field of health law have one thing in common: changes in who holds political power ‒ Congress and state legislatures, governors, presidents, judges, and agency officials. The laws that structure financial, economic, educational, and health care systems, environmental conditions, and civil society are primarily the product of elections that populate our political institutions. These structural determinants of health in turn create laws that influence how ‒ and how well ‒ we live and whether our society functions fairly under the rule of law. Thus, who gets elected matters a great deal to the health and safety of Americans. At the same time, changes in health laws resulting from elections may reveal shifts in the structures underlying our legal and economic systems and whether those shifts support or weaken principles of justice and the rule of law.

“The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all.” ¹

It is no coincidence that so many people in the United States, the richest country in the world, face lower life expectancies, rising health risks, and declining economic opportunity, ² when their ability to have a voice in the country’s governance – by voting – is threatened or constrained. The relationship between population health and the health of our democratic institutions is becoming increasingly clear. No longer can we credibly assume that all people can control their own health by simply choosing to eat healthful foods, get medical check-ups, and not smoke, take dangerous drugs, or drink too much alcohol. There are too many other factors that make it more or less possible for people to live a healthy life.

These factors are the fundamental causes of health and well-being among Americans. Often called the structural determinants of health, they include the laws and political institutions that govern the economic, social, and physical environments in which we live, work, and play. ³ These structural determinants, in turn, affect what are known as the social determinants of health: income and wealth, education, occupation, housing, transportation, and climate. ⁴ While the structural determinants of laws and institutions are inherent features of any society, their direction is not. They can operate to increase the likelihood of health and well-being or increase the probability of illness, injury, and premature death. It depends on how government institutions structure financial systems, economic systems, educational systems, environmental conditions, health care systems, and civil society. The officials who design, interpret, and carry out the governing laws – presidents, governors, legislatures, administrative agency officials, and courts – critically shape and influence how – and how well – we live.

It matters a great deal who these officials are, what laws they support, and whether and how they implement those laws. Thus, who gets elected matters a great deal to the health of Americans. This is why voting is at the root of our health and well-being. As the U.S. Supreme Court wrote in 2015, it is “the core principle of republican government … that the voters should choose their representatives, not the other way around.” ⁵ Voters unable to cast a ballot effectively have no voice in how they are governed. Elections have consequences. One consequence is the possibility of living a healthy life free from avoidable pain and misery.

Recognizing the importance of voting to health poses a challenge to health law scholars. The number and types of laws that have shaped the health policy landscape are too numerous to subsume within a single field of law. We are not experts in election law, environmental law, banking law, or property law. Yet, laws in such specialties can generate not only health consequences that should not be ignored, but also reconfigure basic principles of law that then apply in the health law field. ⁶ Health lawyers are in a good position to recognize the broader changes in the legal system, because health law touches so many different legal domains.

This essay first considers the challenges to our democratic institutions that could undermine the rule of law in the United States. The next two sections consider how the field of health law has developed in response to several key changes in social policy. A fourth section provides examples of laws affecting social determinants of health and laws destabilizing health laws. Finally, the essay considers the challenges of political polarization in the future of health law.

Challenges to Democracy

There is a disturbing growth of literature on threats to democracy around the world ⁷ and in the United States in particular. ⁸ Books specific to the United States describe Republican efforts to solidify a permanent majority in government. ⁹ These include projects to restrict voting by groups thought to vote for Democrats ¹⁰ and present selective versions of history that exclude our failures to live up to our ideals. ¹¹ Both of these endeavors, as well as controlling education and the media, are classic strategies used by authoritarian governments to stay in power. ¹²

Interestingly, books attacking Democrats and the Left wing tend to criticize policies rather than assert a strategic program for political domination. ¹³ They do not seriously allege efforts to take over political power or dismantle democratic institutions, perhaps because Democrats are notoriously unlikely to organize their disparate factions into such a campaign. A major critique is that Democrats practice identity politics, dividing the population into racial, religious, gender, ethnic, geographic, and economic groups and oppressors and oppressed, with less attention to the common hopes and aspirations of all Americans. ¹⁴ Of course, Republican efforts to win elections, appoint and elect judges, and install favored professors in universities are not wholly coordinated either. ¹⁵ But their independent efforts have the same goals, and they have been remarkably successful. ¹⁶

Lilliana Mason argues that we no longer identify with the different social and cultural communities to which we belong – sports, hobbies, social clubs, work colleagues – that connect us with people of different political views. ¹⁷ Rather, our various identities have merged into partisan political identities, leading to “social sorting” that distances us from those with different political views and encourages polarization. ¹⁸ Ezra Klein argues that America’s political polarization is built into the structure of government and elections– designed to allow a clash of ideas that result in productive compromises and better policies. ¹⁹ But today, too many politicians and advocates eschew compromise. ²⁰ Opponents are often portrayed not as fellow human beings whose views deserve consideration, but as enemies who must be defeated. The result is a winner-take-all battle.

The laws governing matters of health, like other social policies, are always subject to change, depending on who is elected to an official position, whether President, Senator, board of health or school board member. The field of health law developed and grew within the political culture prevailing in most of the twentieth century. The past four decades produced a shift in politics and law. Today, we are faced with more extreme possibilities for change, both for the rule of law and for the health prospects of Americans.

Health Law in the Liberal International Order

In the first half of the twentieth century, most early textbooks about law and medicine were practical manuals focused on hospital administration, professional licensure, privileges, and liability. ²¹ Hospitals were not yet centers of technological competition, ²² and lawsuits were relatively few. ²³ In the 1950s and 1960s, law ventured into forensic medicine with attention to the use of medical evidence in litigation, especially in determinations of the cause of death, criminal prosecutions, malpractice trials, and civil commitment proceedings. ²⁴ Initially viewed as legal advice to assist medicine, rather than a field of law, this medical-legal specialty had trouble arriving at a generally accepted definition of its scope or even a name for itself. ²⁵ But times were changing.

World War II forced an examination of how even physicians could engage in torturing and killing their fellow citizens. ²⁶ The civil rights movement of the late 1960s and early 1970s brought attention to the rights of patients, such as informed consent to medical care and experimentation, confidentiality of personal medical information, and equitable access to quality care. ²⁷ The era of medical professional hegemony was declining. ²⁸ The historical deference afforded to physicians came under scrutiny as medical practice incorporated new, more sophisticated drugs, vaccines, and surgical procedures. ²⁹ Unlike crude measures such as amputations, these medical advances functioned in ways and offered risks and benefits that were not obvious to the lay public. ³⁰ The doctrine of informed consent developed to enable patients to understand their choices and make voluntary, informed decisions, ³¹ and courts began to recognize a patient’s right to refuse even life-saving treatment. ³² George Annas championed the rights of patients and earned the honorific of Father of Patient Rights. ³³

The rights of patients opened new pathways to apply civil rights to other areas previously dominated by the medical profession or public health officialdom, such as civil commitment laws and the Americans with Disabilities Act. ³⁴ The Nuremberg Code provided a foundation for insisting that people could not be used as objects of experimentation without their voluntary consent. ³⁵ In the United States, federal regulations to protect human subjects stimulated an entire field of practice in institutional review of research. Today, law schools offer courses and certificates in research compliance.

The rights of patients, and human rights more broadly, are guiding principles of justice for many scholars navigating the health law field. ³⁶ They mean that in all or most circumstances, justice requires that patients and other individuals in contact with the health care system have rights that should be enforceable. Laws and structures that violate that principle forfeit any legitimacy. Of course, the precise substance of and enforcement mechanisms for those rights can be debated. But the emergence of “health” law as a legal specialty began with patient rights. ³⁷

More recently, the idea that all Americans should be treated equally under law and enjoy the same rights has been challenged, ironically, as a special privilege. Many of those in power who took their privilege for granted claim (and may believe) that allowing others to enjoy the same privileges somehow deprives them of their own rights. The result has been a reexamination of which rights merit constitutional or statutory protection. ³⁸ Successful challenges to civil rights began to accumulate in the twenty-first century. The Supreme Court expanded the reach of rights protected by the First and Second Amendments. ³⁹ It overturned Roe v. Wade – taking away a constitutional right for the first time in history. ⁴⁰ Anti-discrimination laws and regulations continue to be challenged, posing threats to population health and laws governing health care. ⁴¹

Federal v. State v. Private Sector: Money Matters in Health Politics

Advances in science and medicine expanded the social role of medicine and, with it, new applications of the law. ⁴² After World War II, the federal government offered grants and loans to fund new hospital facilities under the Hill-Burton Act – with regulatory strings attached. ⁴³ One goal was to expand access to care for those who could not otherwise afford it. Funding recipients were obligated to provide some free or low-cost care. ⁴⁴ A growing post-war economy in the 1960s enabled Congress to enact Medicare, Medicaid and, later, CHIP, to provide more people with health benefits coverage. ⁴⁵ Thus began a new era of federal health care financing and influence over state and private health care regulation. However, this was not socialized medicine. Politics played an outsized role in rejecting any structure that would grant the federal government control over the provision of care. Providers chose what to provide, and payers, both public and private, initially paid almost anything the professionals asked for their services. Apart from the Veterans Affairs health program and certain Department of Defense programs, the federal government left it to the private sector to provide medical services of all kinds.

As the supply of health care products and services increased, so did the cost of health care. ⁴⁶ Health care organizations could now offer a glittering array of sophisticated diagnostic tools and treatments, as well as vaccines, thanks in part to federal funding of scientific research. Insurers found a lucrative market for coverage. ⁴⁷ Corporations began to acquire hospitals and other health care facilities, and ultimately private medical practices. ⁴⁸

Ironically, without direct control over pricing and how much care was delivered by the private sector, government needed more complicated forms of regulation to achieve its goals of increasing access to care, ensuring the quality of care, and keeping costs affordable for the population and within budgetary boundaries for government. Administrative agencies began producing increasingly detailed rules for participating in Medicare, Medicaid, CHIP and other programs, as well as mergers and acquisitions, and the legal profession produced specialists in response.

The health law field took off as health care consumed a growing percentage of the economy. National health expenditures reached 10.7% of GDP in 1985. ⁴⁹ As Fran Miller has noted for decades, a legal specialty focused on a field that accounts for such a large share of the economy cannot be ignored. ⁵⁰ But growth exacerbated political divisions among those advocating expanded access to care, those concerned with the growth of federal expenditures, and those opposed to federal involvement in health matters traditionally governed by the states. The compromises produced a complicated patchwork structure attempting to simultaneously preserve state regulation of professional and insurer licensure in a field increasingly dependent on federal dollars. Meanwhile, expanded coverage enabled more people to seek medical care and created a new private health insurance market. Providers were now subject not only to federal and state regulations, but also health insurers’ rules, as the supply of new treatments and their costs grew.

By the 1980s, rising costs for health care were widely viewed as unsustainable. ⁵¹ That view was not new then, and it persists today. Yet prices continue to rise. National health expenditures are estimated to be 17.7% of GDP in 2024 and 19.7% by 2032. ⁵² Without public or private control over the price of services, expenditures keep rising faster than the consumer price index. In the late 1980s and 1990s, managed care or managed competition was touted as the answer. ⁵³ But insurers had relatively few levers to keep costs down. They either paid providers less (successfully resisted by hospitals that consolidated to gain bargaining power), limited patient benefit coverage or increased patient out-of-pocket payments. Insurers rarely decreased their own administrative costs, especially as government regulations increased. Attempts to “manage” care have had some success, but also significant pushback from patients and physicians. ⁵⁴

The Affordable Care Act succeeded in increasing health insurance coverage. About 93.1% of the population is projected to have public or private health coverage in 2023. ⁵⁵ But it did not directly address the cost problem. Nor did it alter reliance on the private sector to provide care. Political resistance to government price controls continued unabated. The result was another complicated statute patched onto an already complex structure of laws.

Today’s financing of medical practice and health care facilities has challenged the beneficence goal of the medical profession. Relatively recent entrants in the financing mix are private equity companies that buy hospitals and medical practices, negotiate contracts with reduced payments to providers, replace physicians with lower-cost practitioners, and often sell the acquisition at a profit. ⁵⁶ The goal of decreasing costs (or increasing profits) pressures physicians to spend as little time as possible with patients, risking misdiagnoses. Financial pressures also incentivize physicians to code their visits with the most remunerative diagnoses and procedures. Physicians, who long sought to retain their independence, have lost much of it in today’s private market. ⁵⁷ Health law scholars warned that the influence of money could undermine the quality of care. ⁵⁸ And in many places, it is doing just that. ⁵⁹

Politics and Health Law

The oversimplified summary above merely highlights several ways in which our political institutions have shaped the scope of health law. Health lawyers must deal with an increasingly complicated, rule-ridden legal domain. This is not surprising, given the historical shifts in public attitudes back and forth between favoring access to care and private provision of health care services. ⁶⁰ A federal system of providing care or national health insurance might achieve near-universal access and be administratively simpler to understand and operate, and possibly less, or no more, expensive than the multiple sources of insurance and service providers we have. ⁶¹ But Americans have resisted many forms of government control throughout history, even when they like what the government provides. ⁶²

Most Americans do seem to want access to care. They are unlikely to tolerate a return to the era of entirely private risk-based health insurance, which was often unavailable or unaffordable to people with or without pre-existing conditions. ⁶³ To preserve the private market while enabling everyone to obtain affordable coverage, however, entails imposing requirements on insurers that are inconsistent with traditional insurance principles. ⁶⁴ In other words, it is complicated to use private actors to achieve national goals that conflict with the normal functioning of the private market. So, it is likely that future efforts to achieve the goals of access, quality, and affordability will be incremental and produce more complications and more jobs for health lawyers.

What future changes should be adopted? Ideally, changes that would benefit the goals of justice and improving health. This is where awareness of the structural determinants of health come in. Without understanding how laws affect health and how politics and elections determine what laws we have, health lawyers miss important contexts for the work we do.

Health can be affected by existing laws and by political paralysis that stymies better laws. Poverty itself may be the most powerful predictor of poor health. ⁶⁵ Recent research reports that the earnings of adults born (between 1978 and 1992) into high-income families increased, while those born into low-income families decreased, widening the gap between income classes, while the gap between White and Black adults decreased slightly. ⁶⁶ Economic policies, such as tax benefits for the very wealthy, tend to enlarge the gap between rich and poor, and healthy and unhealthy. ⁶⁷ Housing policies governing the real estate market and public housing can create geographic pockets of income-disadvantaged people. ⁶⁸

Strong predictors of lack of access to positive social determinants of health are race, ethnicity, national origin, sexual orientation, and gender identity. ⁶⁹ Black, indigenous, and people of color continue to be disproportionately represented in disadvantaged communities, with less access to financing, land, housing, jobs, and good schools. ⁷⁰ Whether deliberate or enacted without consideration of real world consequences, laws governing those determinants have left too many people without the opportunities available to the rest of the population. ⁷¹

States limiting Medicaid eligibility and coverage tend to have higher rates of chronic illness, as well as maternal and infant mortality and morbidity, especially among Black patients. ⁷² Laws allowing credit agencies to report medical debt to lending institutions, prospective employers and landlords can deprive people of loans, transportation, jobs, and housing. ⁷³ Limited access to education and poor quality schools stymie opportunities to achieve a comfortable living. ⁷⁴ The failure of attempts to address the existential threat of climate change leave the population at increasing risk of disasters that will cost lives and huge expenditures to salvage livable space. ⁷⁵

Judicial decisions are also altering the legal landscape in health law. Longstanding precedent has been overturned in several recent cases. The Dobbs decision has thrown reproductive care into turmoil. ⁷⁶ Clinics are closing in states that ban or restrict abortion. ⁷⁷ Physicians fear criminal prosecution or losing their licenses for providing emergency pregnancy terminations or helping women with miscarriages. ⁷⁸ Providers in states where abortion is still lawful worry that providing information to women from states that restrict abortion may subject them to the same threats, while lawyers worry over which state’s law applies and how to interpret it. ⁷⁹

With the U.S. Supreme Court’s decisions following District of Columbia v. Heller, ⁸⁰ the proliferation of firearms poses increased risks throughout the country. ⁸¹ Despite arguments that the Court should take the public health and safety consequences of constitutional doctrine into account, ⁸² it seems to be moving in the opposite direction. The cases overturning the Chevron doctrine ⁸³ and establishing the “major questions” doctrine ⁸⁴ suggest that agencies like the Environmental Protection Agency and the Occupational Safety and Health Administration will face more challenges to their efforts to protect the public and may be reluctant to try.

Of course, not all judicial decisions impede protecting health and safety. But there are too many examples that do to ignore their effects. The infusion of polarized politics into health laws puts health lawyers in a quandary. How can we teach legal principles in the absence of the political context? Are we then teaching political science instead of law?

In some areas, the political climate is inescapable. For example, the old debate over whether the federal or state government should have primary jurisdiction over health matters is pervasive in health law. Advocacy for so-called “states’ rights” began with the country’s establishment, in the Articles of Confederation and the Constitutional Convention of 1787. ⁸⁵ The concept was originally presented not simply to preserve states’ from a new form of national control, but also to support states retention of enslavement, which made their agricultural economic system profitable. ⁸⁶ The argument for state primacy has persisted throughout our history, often as a means to limit Black and Brown Americans and other politically disfavored groups from exercising the franchise. ⁸⁷ Today’s debates over which level of government should control which institutions in a federal structure have deep roots in American history.

Another example of the encroachment of politics is the U.S. Supreme Court’s shift toward analyzing constitutional powers and rights in terms of their pedigree in history and tradition. Lawyers and judges are not historians. ⁸⁸ Debating the persuasiveness of the Court’s opinions can devolve into arguments over whether the historical evidence has been cherry-picked to support a preferred outcome. Judicial philosophies are not necessarily political allegiances, but they often rhyme. ⁸⁹

Moving Forward

How does one manage amidst what seems to be intransigent political polarization in the United States? There is good evidence that the general population is less polarized than elected officials. ⁹⁰ Yet, while many people agree on many ideological issues, they elect politicians who are very polarized. ⁹¹ Voters may have little choice, since primary elections tend to bring out the most ideologically extreme constituents, so that general elections offer candidates that represent their parties’ extreme wings. If elected, candidates push the parties to the extreme, ultimately dissolving any ideological overlap between the parties. ⁹² Gerrymandering and rules that restrict disfavored voters’ access to the ballot add to the skepticism that elected officials represent the views of their constituents. There is good reason, therefore, to pay attention to voting rights and elections. It is quite possible that the majority of the voting public would agree on better laws governing the health field.

One caveat is that Americans’ trust in our political institutions has declined dramatically. A telling indicator is the number of lawsuits challenging voting and election results – 158 during the run-up to the 2024 elections, as of mid-July 2024. ⁹³ Until 2020, the vast majority of such lawsuits were filed to protect citizens’ right to cast a legitimate ballot and have it accurately counted. ⁹⁴ In 2024, most sought to curtail access to the ballot or subject election administration to control by the political party in power. ⁹⁵ Distrust in government undermines faith in the rule of law itself. Disturbingly, countries that have lost faith in elections and courts are more likely to fall prey to autocrats and demagogues who promise to solve everyone’s problems if they just turn over power to the leader. ⁹⁶

We may be approaching a political realignment that moves us toward either protecting or eliminating legal rights, preserving or destroying our environment, narrowing or widening the gaps in wealth, education, and health among the population. Realignments happened after the Civil War, World War II, the Great Depression, the civil rights movement, and the Reagan “revolution.” Jon Meacham has argued that history shows that our “better angels” can find a way for us to survive crises. ⁹⁷ I certainly hope so. But we will need lawyers to stand up for democracy.

Conclusion

The field of health law has grown dramatically over the past half century in response to advances in science and medicine, social and cultural changes, and economic shifts. Major changes do have one thing in common: changes in who holds political power–Congress and state legislatures, governors, presidents, judges, and agency officials. The laws that structure our financial, economic, educational, and health care systems, environmental conditions, and civil society are primarily the product of elections that populate our political institutions. These structural determinants of health in turn create laws that affect the distribution of social determinants of health – income and wealth, education, occupation, housing, transportation, and environment.

Current political divisions are destabilizing existing laws affecting the health field. Attention to elections and their consequences for the structure of our legal, economic, and social systems can broaden our understanding of the law’s effects on health. Changes in health law may, in turn, reveal structural changes in the legal system and threats to the rule of law. This means that we should think carefully about whether and how laws that constrain opportunities for health and safety are also shifting the legal system away from principles of justice. Lawyers have a duty to call attention to threats to the rule of law. Health lawyers should have a special responsibility to do so, because we often see more of the bigger picture.