American society tends to medicalize or criminalize social problems. Criminal justice reformers have made arguments for a positive role in the relief of poverty that are similar to those aired in healthcare today. The consequences of criminalizing poverty caution against its continued medicalization.

For the first time, entrepreneurs are aggressively developing new technologies and business models designed to improve individual and population health, not just to deliver specialized medical care. Consumers of these goods and services are not yet “patients”; they are simply people. As this sector of the health care industry expands, it is likely to require new forms of legal governance, which we term “upstream health law.”.

Medicine and health are surprisingly separate. In the introduction to his 1963 master work on medical economics, Kenneth Arrow acknowledged that “the subject is the medical-care industry, not health.” In the 50 years that followed, researchers, policymakers, and public health professionals generated valuable and varied insights into health, impacting both behaviors and environments while addressing social determinants and demographic trends. Yet medical care has followed an even steeper upward trajectory, growing rapidly in scientific precision, public esteem, and technical sophistication.As a (...) result, the economic gap between the two domains has widened. The U.S. health care system spends almost $3 trillion annually. Preventive screening and early intervention bridge medical care and health, as do nutrition, behavioral health, aging, and a few other fields. But the money is overwhelmingly in medical care, particularly rescue care for those with acute illnesses or serious complications of chronic disease. (shrink)

It is no exaggeration to say that American health policy is frequently subordinated to budgetary policies and procedures. The Affordable Care Act was undeniably ambitious, reaching health care services and underlying health as well as health insurance. Yet fiscal politics determined the ACA’s design and guided its implementation, as well as sometimes assisting and sometimes constraining efforts to repeal or replace it. In particular, the ACA’s vulnerability to litigation has been the price its drafters paid in exchange for fiscal-political acceptability. (...) Future health care reformers should consider whether the nation is well served by perpetuating such an artificial relationship between financial commitments and health returns. (shrink)

Essays on stem cell policy seem to fall into three categories. Some essays in this collection are about logic and principles. Others are about practices and beliefs. The former group draws lines and defends them, a normative project. The latter group attempts to explain the lines that already exist, a descriptive project that may have important normative goals. Still other essays, by scientists, are about growing stem cell lines instead of drawing them.The purpose of this essay is to situate the (...) lines being drawn around stem cell science in the larger landscape of health policy. I am interested in the things that cause health policy to take particular directions and the consequences of those directions for cost, access, and quality — all of which are determined in part by biomedical innovations such as those potentially derived from stem cells. (shrink)

Medical-legal partnership (MLP) embeds attorneys and paralegals into care delivery to help clinicians address root causes of health inequities. Notwithstanding decades of favorable outcomes, MLP is not as well-known as might be expected. In this essay, the authors explore ways in which strategic alignment of legal services with healthcare services in terms of professionalism, information collection and sharing, and financing might help the MLP movement become a more widespread, sustainable model for holistic care delivery.

Embryonic stem cells are actively debated in political and public policy arenas. However, the connections between stem cell innovation and overall health care policy are seldom elucidated. As with many controversial aspects of medical care, the stem cell debate bridges to a variety of social conversations beyond abortion. Some issues, such as translational medicine, commercialization, patient and public safety, health care spending, physician practice, and access to insurance and health care services, are core health policy concerns. Other issues, such as (...) economic development, technologic progress, fiscal politics, and tort reform, are only indirectly related to the health care system but are frequently seen through a health care lens. These connections will help determine whether the stem cell debate reaches a resolution, and what that resolution might be. (shrink)

There were two ways for the solicitor general of the United States to litigate the constitutional challenge to the Patient Protection and Affordable Care Act of 2010 brought by twenty‐six states and the National Federation of Independent Business. One path, which the solicitor general pursued, was to cautiously navigate judicial precedents, claim the barest increment of new congressional authority, and give the Supreme Court as many hooks as possible on which to hang a favorable decision.The road not traveled was to (...) offer a full‐throated defense of federal authority to comprehensively regulate the U.S. health care system, a multitrillion dollar commercial and social enterprise that represents the largest component of federal expenditure after national defense. The ACA has three cornerstones. First, make health insurance coverage as widespread as possible. Second, improve the quality and efficiency of health care delivery. Third, make individuals and communities healthier. The second and third pillars are sometimes overlooked because so much attention is paid to expanding coverage, but the hallmark of the ACA is that it combines major changes to health insurance, health care delivery, and health in a single piece of federal legislation.The Obama administration's timidity echoes what is strikingly absent from the new law. Although the ACA represents the successful culmination of a decades‐long struggle to universalize coverage, its structure and text never convey the intent that all Americans have a common stake in the health care system. This lack of shared national identity is the missing fourth pillar of the ACA. (shrink)

Tracing the evolution of political conversations about health care spending and their relationship to the formation of policy is a valuable exercise. Health care spending is about science and ethics, markets and government, freedom and community. By the late 1980s the unique upward trajectory of post-Medicare U.S. health care spending had been established, recessions and tax cuts were eroding federal and state budgets, and efforts to harness market forces to serve policy goals were accelerating. From the initial writings on “managed (...) competition,” through the failed Clinton health reform effort in the early 1990s, to the passage of the Affordable Care Act in 2010, the policy narrative of health spending acquired a superficial consistency. On closer examination, however, it becomes apparent that the cost problem has been repeatedly reframed in political discourse even during this relatively brief period. The clearest transition has been from a narrative centered on rationing necessary care to one committed to reducing wasteful care – although the role of accumulated law and regulation in perpetuating waste remains largely unrecognized and the recently articulated commitment to population health seems an imperfect proxy for explicitly developing social solidarity with respect to health and health care in the United States. (shrink)