American Medicine and the Politics of Race

Straw men play a major role in the debate over racial disparity in American medicine. Most have been deployed by the disparities-denying right, but progressives intent on “outing” racism have sent forth their share. This essay flushes out the straw men while attempting to understand the competing moral premises that drive the politics of health care disparity. At bottom, arguments about the scope of disparity and discrimination in medical care are disputes about the appropriate scope of personal responsibility for life circumstances. Further research into the factors that correlate with racial differences in health care can shed light on the circumstances that bring about these differences.Whether these circumstances, once understood, should be deemed acceptable is a moral and political matter, and sharp differences over the scope of personal and public responsibility for these circumstances are inevitable. Such disagreements, however, distract us from efforts to reach common ground solutions to agreed-upon inequities in health care

Race, Money and Medicines

Taking notice of race is both risky and inevitable, in medicine no less than in other endeavors. The literature on race as a classifying tool in clinical research poses this core dilemma: On the one hand, race can be a useful stand-in for unstudied genetic and environmental factors that yield differences in disease expression and therapeutic response. On the other hand, racial distinctions have social mean­ ings that are often pejorative or worse, especially when these distinctions are cast as culturally or biologically fixed. Our country\u27s troubled past in this regard and the persistence of race-related disadvantage should keep us on notice about this hazard. Yet paying attention to race in order to ameliorate past wrongs sometimes supports the quest for social justice, as Dorothy Roberts points out in this issue. And at times, as Jay Cohn and Raj Bhopal note, attention to race can make a therapeutic difference, to the point of saving lives

The Emergent Logic of Health Law

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching fifty million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this Article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently needed to guide reform. My core proposition is that the law of health care provision is best understood as an emergent system. Its contradictions and dysfunctions cannot be repaired by some master design. No one actor has a grand overview—or the power to impose a unifying vision. Countless market players, public planners, and legal and regulatory decisionmakers interact in oft-chaotic ways, clashing with, reinforcing, and adjusting to each other. Out of these interactions, a larger scheme emerges—one that incorporates the health sphere’s competing interests and values. Change in this system, for worse and for better, arises from the interplay between its myriad actors. By quitting the quest for a single, master design, we can better focus our efforts on possibilities for legal and policy change. We can and should continuously survey the landscape of stakeholders and expectations with an eye toward potential launching points for evolutionary processes—processes that leverage current institutions and incentives. What we cannot do is plan or predict these evolutionary pathways in precise detail; the complexity of interactions among market and government actors precludes fine-grained foresight of this sort. But we can determine the general direction of needed change, identify seemingly intractable obstacles, and envision ways to diminish or finesse them over time. Dysfunctional legal doctrines, interest group expectations, consumers’ anxieties, and embedded institutional and cultural barriers can all be dealt with in this way, in iterative fashion. This Article sets out a strategy for doing so. To illustrate this strategy, I suggest emergent approaches to the most urgent challenges in health care policy and law—the crises of access, value, and cost

The Market for Medical Ethics

At the core of Kenneth Arrow’s classic 1963 essay on medical uncertainty is a claim that has failed to carry the day among economists. This claim—that physician adherence to an anti-competitive ethic of fidelity to patients and suppression of pecuniary influences on clinical judgment pushes medical markets toward social optimality—has won Arrow near-iconic status among medical ethicists (and many physicians). Yet conventional wisdom among health economists, including several participants in this symposium, holds that this claim is either naïve or outdated. Health economists admire Arrow’s article for its path-breaking analysis of market failures resulting from information asymmetry, uncertainty, and moral hazard. But his suggestion that anticompetitive professional norms can compensate for these market failures is at odds with economists’ more typical treatment of professional norms as monopolistic constraints on contractual possibility. If the goal of health care policy and law is to maximize the social welfare yield from medical spending, consideration of the place of professional ethics norms in health policy requires that we pose three questions. First, how can we distinguish between professional norms that enhance social welfare (even if “anticompetitive” in some sense) and therefore merit our deference (and perhaps even some legal protection) and norms that reduce welfare? Second, when we conclude that a professional norm is socially undesirable, how should we go about choosing among regulatory and legal strategies and deference to markets as means for dissolving the norm? Third, when we conclude that a professional norm is socially desirable, how should we go about preserving it? Should we defer to market outcomes—and perhaps shield select forms of professional collusion from antitrust intervention? Or should we defend this norm actively, through legal and regulatory intervention? This essay focuses on the first of these three questions, since it is the subject of Arrow’s article. From a public policy perspective, however, the second and third are just as important. It is hardly obvious that a socially undesirable norm should be targeted by judges or regulators rather than left to wither in the marketplace; nor is it clear that a socially desirable norm needs legal or regulatory support to survive

Obesity and the Struggle Within Ourselves

The author argues that we ought to treat our eating, exercise habits, and girth as personal matters, for the most part, but that law can and should make a contribution, as an ally of our longer-term will against our immediate cravings. Law can be our ally in this fashion without command-and-control intrusion into our private lives. Such intrusion is at odds with our core beliefs and unlikely to produce public health success. It is more likely to provoke popular backlash--one reason why some who stand to gain from our unhealthy dining choices try to cast government efforts to inform these choices as heavyhanded interference in our lives. Public policy and law should support our beleaguered self-restraint in the face of potent social cues and pressured life circumstances that make us more responsive to our short-term, unreflective intentions. Policymakers should also look for opportunities to set our cravings against each other. From a public health perspective, for example, safe sex is better than reckless eating. To the extent that erotic feelings suppress snacking or inspires regular exercise, they are a potential ally in campaigns against overeating. Through such strategies, the state can promote health without eroding its citizens\u27 sense of freedom in the private sphere. The author proceeds as follows. First, he disentangles the debates over: (1) the causes of obesity (and overweight) and (2) the reasons for its recent, rapid increase in incidence. A health problem\u27s underlying causal mechanisms are typically distinct from the reasons for the problem\u27s epidemic surge. But in the case of obesity, these two issues are often conflated. Commentators opposed to state intervention tend to argue that various proposed causal mechanisms cannot explain obesity\u27s epidemic surge and therefore should not become foci of government action. Proponents of robust public intervention tend to point to a broad array of causal mechanisms, citing each as justification for action. Both approaches are misguided. The question of what might work as a remedy, in terms of both efficacy and consonance with our cultural and legal values, is distinct from the question of cause. Not all causes imply viable remedies. And, conversely, effective remedies (be they clinical or legal) need not operate via the causal pathways that explain obesity\u27s epidemic surge. Second, he considers the varied causal accounts with an eye toward remedies that might yield health benefits (at reasonable cost) and fit with enduring American legal and cultural norms. The author rejects black box accounts of personal choice that treat consumers\u27 current eating habits as sovereign expressions of preference. But he eschews government measures that would override people\u27s expressed preferences and thus be experienced by Americans as oppressive. Instead, he urges efforts to encourage healthier eating and exercise choices by better informing consumers and sharpening their awareness of risks and benefits. Public health activism along these lines can succeed by forging alliances with our longer-term selves against our immediate cravings. It will fail (and bring about a backlash) if it is widely seen as an attempt to foreclose dietary choices that large numbers of Americans continue to make

Race and Discretion in American Medicine

The author’s focus in this article is on racial disparities in medical care provision--that is, on differences in the services that clinically similar patients receive when they present to the health care system. Racial disparities in health status, which is not greatly influenced (on a population-wide basis) by medical care, are beyond his scope here. Disparities in medical care access-potential patients\u27 ability, financial and otherwise, to gain entry to the health care system in the first place, are also outside his focus. The author begins this article by putting the problem of racial disparities in medical care provision within the larger context of disparities in health status and medical care access. In Part I, the author concedes: (1) that medical care is almost certainly less important as a determinant of health than are social and environmental influences, and (2) that inequalities in Americans\u27 ability to gain entry to the health care system probably play a larger role in medical treatment disparities than do racial differences in the care provided to people who succeed in gaining entry. He then briefly examines the moral politics behind the appearance of racial disparity in health care provision on the national policy agenda, ahead of disparities in health status and medical care access. In Part II, the author considers the links between clinical discretion and racial disparities in health care provision. He argues that pervasive uncertainty and disagreement, about both the efficacy of most medical interventions and the valuation of favorable and disappointing clinical outcomes, leave ample room for discretionary judgments that produce racial disparities. Neither existing institutional and legal tools, nor prevailing ethical norms, impose tight constraints on this discretion. As a result, provider (and patient) presuppositions, attitudes, and fears that engender racial disparities have wide space in which to operate. In Part III, the author refines this argument, pointing to a variety of extant organizational, financial, and legal arrangements that interact perniciously with psychological and social factors to potentiate racial disparities. Part IV considers the impact of the managed care revolution, contending that its cost containment strategies both contribute to racial differences in health care provision and creates opportunities for reducing some of these disparities. Part V closes with some recommendations as to how health care institutions and the law might respond pragmatically to racial disparities even as they pursue other important policy goals

Trust and Betrayal in the Medical Marketplace

The author argues in this Comment that disingenuity as first resort is an unwise approach to the conflict between our ex ante and our later, illness-endangered selves. Not only does rationing by tacit deceit raise a host of moral problems, it will not work, over the long haul, because markets reward deceit\u27s unmasking. The honesty about clinical limit-setting that some bioethicists urge may not be fully within our reach. But more candor is possible than we now achieve, and the more conscious we are about decisions to impose limits, the more inclined we will be to accept them without experiencing betrayal

The Gag Rule Revisited: Physicians as Abortion Gatekeepers

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court\u27s announced truce, an elaboration on Justice O\u27Connor\u27s undue burden idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seems unlikely to yield a lasting peace. However artful as political brokerage, it is unpersuasive as principled jurisprudence. Its explicitly political calculus invites skepticism about its authors\u27 commitment to principled method even as it purports to preserve public regard for judicial legitimacy. Moreover, there is an unexplained disconnect between the opinion\u27s avowed preservation of Roe\u27s essential holding and its abandonment of Roe\u27s commitment to reproductive freedom as a compelling interest. Should the undue burden approach nevertheless survive for a time, its standardless character will encourage continuing cease-fire violations as abortion opponents probe its ill-marked limits. Its survival, though, is as uncertain as its substantive content. Not only were its three proponents unable to win over a majority; four justices proclaimed their commitment to frankly overruling Roe. The election of Bill Clinton is no guarantee that a fifth vote will not emerge in the future

Rogue Science

This review essay considers the tension between the evidence-driven vision of science\u27s mission and the fears of malicious use and terrible consequences that have come to the fore since the terrorist attacks of September 11, 2001. These fears have led some to call for government restrictions on the substance of scientific research and communication. In general, this approach is likely to do far more harm than good. But scientists need to take the problem of social consequences more seriously than they have so far. The author argues in this essay that in some circumstances, when rogue use of science can do large-scale harm and when there are strong grounds for believing that a foe has the will and ability to do such harm, self-restraint within the scientific community is called for. The following works are reviewed: Science in the Service of Human Rights, By Richard Pierre Claude, University of Pennsylvania Press, 2002. Science and Technology in a Vulnerable World, Edited by Albert H. Teich, Stephen D. Nelson and Stephen J. Lita. American Association for the Advancement of Science, 2002

The Invention of Health Law

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law\u27s disparate doctrinal strands? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law\u27s aims more modestly, based on acknowledgment that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated non-instrumentally, as separate ends. I conclude with an effort to identify the goals that health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies