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The Crisis of Democracy in Healthcare: An Introduction

Published online by Cambridge University Press:  06 January 2021

Michele Goodwin
Michele Goodwin*
Affiliation:
University of California, Irvine
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American Journal of Law & Medicine , Volume 45 , Issue 2-3: Symposium - The Crisis of Democracy in Healthcare: Non-Legislative Efforts to Change Health Law , May 2019 , pp. 99 - 105
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Copyright © American Society of Law, Medicine and Ethics and Boston University 2019

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References

1 Steven Greenhouse, Companies Push to Repeal Provision of Health Law, N.Y. Times, Mar. 29, 2010, http://www.nytimes.com/2010/03/30/business/30subsidy.html?scp=3&sq=obama%20critized%20for%20health%20care%20reform%20march%202010&st=cse [https://perma.cc/7KYY-SHSN]; David M. Herszenhorn & Robert Pear, Health Vote Is Done, but Partisan Debate Rages On, N.Y. Times, Mar. 22, 2010, http://www.nytimes.com/2010/03/23/health/policy/23health.html?scp=1&sq=republicans%20want%20to%20repeal%20health%20care%20reform%20march%2023%202010&st=cse [https://perma.cc/XT87-S8GV]; Kate Zernike, Proposed Amendment Would Enable States to Repeal Federal Law, N.Y. Times, Dec. 19, 2010, http://www.nytimes.com/2010/12/20/us/politics/20states.html?scp=35&sq=controversey%20Obama%20health%20care%20bill&st=cse [https://perma.cc/6PDH-4PYU].

2 Ewen MacAskill, Barack Obama's Healthcare Bill Passed by Congress, Guardian, Mar. 22, 2010, https://www.theguardian.com/world/2010/mar/22/us-healthcare-bill-passes-congress [https://perma.cc/LHB5-EEJU] (noting that “Every Republican opposed the bill”).

3 Niraj Chokshi, Historians Take Note: What America Looked Like Before Obamacare, Wash. Post, Mar. 26, 2014, https://www.washingtonpost.com/blogs/govbeat/wp/2014/03/26/historians-take-note-what-america-looked-like-before-obamacare/?noredirect=on&utm_term=.71a9fe98678b [https://perma.cc/LZS4-B7EQ] (quotes a Commonwealth Fund report describing how before Obamacare one in four, or about 79 million, Americans were either uninsured or underinsured).

4 See, e.g., Jacoby, Melissa B. & Holman, Mirya, Managing Medical Bills on the Brink of Bankruptcy, 10 Yale J. Health Pol'y L. & Ethics, 239-98, 288 (2010)Google Scholar (urging “caution in using the DOJ court record analysis or other such studies to measure patient media debt on a standalone basis”). See also Allen St. John, How the Affordable Care Act Drove Down Personal Bankruptcy, Consumer Reports (May 2, 2017 https://www.consumerreports.org/personal-bankruptcy/how-the-aca-drove-down-personal-bankruptcy/ [https://perma.cc/4RUF-TTNB].

5 The Henry J. Kaiser Family Foundation, National Health Insurance—A Brief History of Reform Efforts in the U.S., Focus on Health Reform Newsletter (Mar. 2009), http://www.kff.org/healthreform/upload/7871.pdf. (discussing America's history of national health reform proposals starting with Roosevelt's Bull Moose party “health insurance for industry” campaign in 1912)

6 Id. at 5.

7 Jennifer Haberkorn, Partisan Splits Show in Health Care Debate, Wash. Times, June 19, 2009 http://www.washingtontimes.com/news/2009/jun/19/health-care-debate-begins-with-partisan-splits/ [https://perma.cc/4JRL-DZLR]; Paul Howard, Partisanship Trumps All In Health Care Debate, FoxNews.com, http://www.foxnews.com/opinion/2010/02/27/paul-howard-obama-health-care-summit-democrats-republicans/ [https://perma.cc/ACE8-YLSA] (last visited Feb. 27, 2010); Carl Hulse & David M. Herszenhorn, Senate Debate on Health Care Exacerbates Partisanship, N.Y. Times, Dec. 20, 2009, https://www.nytimes.com/2009/12/21/health/policy/21senatecnd.html?mtrref=www.google.com&gwh=C602A10215BF7D9A669B5940B49BA67C&gwt=pay&assetType=REGIWALL [https://perma.cc/69V7-JU2Q].

8 Christi Parsons & Lisa Mascaro, Obama, Who Sought to Ease Partisanship, Saw It Worsen Instead, L.A. Times, Jan. 14, 2017, https://www.latimes.com/projects/la-na-pol-obama-partisan/ [https://perma.cc/G6JFBXB7] (“In the 1960s and 1970s, the Democratic and Republican parties had broad coalitions of liberals, moderates and conservatives. Presidents could forge bipartisan consensus for major legislation, from civil rights to environmental protection.”); See also Ezra Klein, Congressional Dysfunction, Vox, May 15, 2015, https://www.vox.com/2015/1/2/18089154/congressional-dysfunction [https://perma.cc/925W-YJMF] (noting that “The Civil Rights Act of 1965 is a good example [of political polarization at a low ebb]: The law was primarily pushed by politicians in the Democratic Party, but many northern Republicans supported it while southern Democrats were its fiercest opponents”).

9 Dan Balz, Obama & LBJ: Measuring the Current President Against the Past One's Legacy, Wash. Post, Apr. 12, 2012, https://www.washingtonpost.com/politics/obama-and-lbj-measuring-the-current-president-against-the-past-ones-legacy/2014/04/12/672718fe-c258-11e3-bcecb71ee10e9bc3_story.html?noredirect=on&utm_term=.ada2d2d79f12 [https://perma.cc/QKL5-4ML6] (“it is questionable whether even LBJ could be LBJ in today's polarized political climate.”).

10 See Noam N. Levey, Democrats Many Maneuver Around GOP Filibuster on Healthcare Legislation, L.A. Times, Apr. 25, 2009, https://www.latimes.com/archives/la-xpm-2009-apr-25-na-healthcare25-story.html.

11 See Kirk Johnson, Democrats Go on the Road to Revive Health Care Push, N.Y.Times, Sept. 2, 2009, https://www.nytimes.com/2009/09/03/health/policy/03bus.html?searchResultPosition=53 [https://perma.cc/7SBD-3LK5].

12 See U.S. Senate, Party Division in the Senate, 1789-Present, http://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm [https://perma.cc/AXF4-YGUH] (last visited July 18, 2019) (noting that Democrats were the majority party in the 111th Congress).

13 See Health Care and the Mid-Term Elections: Coming Back to Bite Him, The Economist (Oct. 14, 2010), http://www.economist.com/node/17259055.

14 See, e.g., The Kaiser Family Foundation, Kaiser Health Tracking Poll, Kaiser Family Found., https://kaiserfamilyfoundation.files.wordpress.com/2013/01/8020.pdf (last visited July 23, 2019) (finding that 33% of Americans favored healthcare reform at the time, but did not like what they were hearing about current legislation). See also ObamaCare and Voters, Wall Street J., Oct. 30, 2010, https://www.wsj.com/articles/SB10001424052702303284604575582394262243272.[https://perma.cc/XB2F-PA87]; Jeffrey M. Jones, More Disapprove Than Approve of Obama on Healthcare, Gallup, July 21, 2009, https://news.gallup.com/poll/121814/more-disapprove-than-approve-obama-healthcare.aspx [https://perma.cc/SJ3D-2FPF].

15 Sarah Palin, Facebook, (Aug. 7, 2009), https://www.facebook.com/notes/sarah-palin/statement-on-the-current-health-care-debate/113851103434/ [https://perma.cc/V9QH-YGAU].

16 Id.

17 Id.

18 See David S. Hilzenrath, Poll Shows Opposition To Health Care Overhaul Declining, Wash. Post, July 29, 2010, http://projects.washingtonpost.com/staff/articles/david+s.+hilzenrath/ [https://perma.cc/2FTX-5QX7] (quoting Drew Altman).

19 NBC News Health Care Survey, Aug. 2009, at 5.

20 Id.

21 See Jamison Foster, Newsflash: People Believe Lies That Aren't Debunked, MEDIAMATTERS for America (Aug. 2, 2010, 12:04PM), https://www.mediamatters.org/washington-post/newsflash-people-believe-lies-arent-debunked?redirect_source=/blog/2010/08/02/newsflash-people-believe-lies-that-arent-debunk/168612 [https://perma.cc/293Q-XNNM] (according to Drew Altman, chief executive at the Kaiser Foundation, “A year after the town meeting wars of last summer, a striking 36% of seniors said that the law ‘allowed a government panel to make decisions about end of life care for people on Medicare’, and another 17% said they didn't know.”).

22 Michele Bachmann (R-MN), Rep. Bachmann Warns of Abortion Field Trips, YouTube (Sept. 30, 2009), http://www.youtube.com/watch?v=CxLYDQ-01pE&feature=player_embedded. [https://perma.cc/T3WV-GDD2].

23 Id.

24 Id.

25 See Cynthia Dizikes, Bachmann Warns of ‘Sex Clinics’ and Abortion in Schools, Minn. Post, Oct. 1, 2009, http://www.minnpost.com/cynthiadizikes/2009/10/01/12112/bachmann_warns_of_sex_clinics_and_abortions_in_schools [https://perma.cc/5JY9-UCSC]. According to Bachmann, the health clinics at public schools, “increased pregnancy. It increased sexually transmitted diseases. It was a disaster for young women in St. Paul public schools.”

26 Rep. Michele Bachmann (R-MN), The Sean Hannity Show (Aug. 18, 2009).

27 See, e.g., Eric Kleefeld, Bachmann: No Government Control Over My Body!, Talking Points Memo Blog (Aug. 20, 2009, 5:18PM), http://tpmdc.talkingpointsmemo.com/2009/08/bachmann-no-government-control-over-my-body.php [https://perma.cc/6WDF-CM4G] (“The irony here is that this same message is often used in American politics to mean something completely different – as a slogan of the pro-choice movement, to which Bachmann most certainly does not belong.”)

28 See Monica Davey, A G.O.P. Agitator Not Named Palin, N.Y. Times, Oct. 14, 2009, https://www.nytimes.com/2009/10/15/us/politics/15bachmann.html [https://perma.cc/NHH9-MQRL] (highlighting Bachmann's public comments against healthcare reform and partisan reactions).

29 The Note, Democratic Rep: ‘Republicans Want You To Die Quickly,’ ABC News, Sept. 30, 2009, http://blogs.abcnews.com/thenote/2009/09/democratic-rep-republicans-want-you-to-die-quickly.html [https://perma.cc/E89X-GR8N]. Later, Senator Tom Cloburn (R-OK) intensified “death rhetoric” in a Congressional speech, claiming senior citizens are “gonna die sooner” under Democrat-driven health care reform. On Congress Reporting and Analysis of Capital Hill, Coburn: “You're Gonna Die Sooner” Under Dem Plan, Politico, Dec. 1, 2009, https://www.politico.com/blogs/on-congress/2009/12/coburn-youregonna-die-sooner-under-dem-plan-023162

30 See, e.g., Michael C. Burgess M.D. (R-TX), floor remarks (Oct. 7, 2009) available at https://www.c-span.org/video/?289329-101/house-session&start=28577 [https://perma.cc/8R68-D3U5] (“In the meantime we do need to do something to cover individuals with pre-existing conditions, those with tough medical diagnosis, their insurance is rescinded from them. Nothing is worse to Americans than if they play by the rules, they pay their insurance every month, then they get sick and dropped from their insurance policy.”); Jeff Fortenberry (R-NE), floor remarks (Oct. 7, 2009), available at https://www.c-span.org/video/?289329-101/house-session&start=28577 [https://perma.cc/FGZ4-NCPW] (“You have another section of America that has real problems with gaps of insurance coverage, either because of pre-existing conditions or loss of job and an inability to afford a product individually. That's a real problem… I think there has been a bipartisan focus on [these issues].”); Ben Lujan (D-NM), floor remarks (Oct. 23, 2009) available at https://www.c-span.org/video/?289608-1/house-session&start=12098 [https://perma.cc/EB3S-XXGU] (“I've heard from constituents across my district who are suffering at the hands of health insurance companies… I've heard from entrepreneurs who want to start their own businesses but fear they won't be able to find coverage for their sick children because they have pre-existing conditions.”),; Peter Hoekstra (R-MI), floor remarks (Oct. 23, 2009) available at https://www.c-span.org/video/?289608-1/house-session&start=12098 [https://perma.cc/P2V7-QGAZ] (“It's inherently unfair that individuals who have a pre-existing condition find it difficult, if not impossible to access healthcare in America”)

31 See generally 42 U.S.C.A. § 300gg-23 (West 2010). See also 45 C.F.R. § 146.111 (Preexisting condition exclusions).

32 Dan Witters, U.S. Uninsured Rate Rises to Four-Year High, Gallup, Jan. 23, 2019, https://news.gallup.com/poll/246134/uninsured-rate-rises-four-year-high.aspx [https://perma.cc/A74SXUK4].

33 Steffie Woolhandler MD, MPH & David U. Himmelstein MD, The Relationship of Health Insurance and Mortality: Is Lack of Insurance Deadly?, Annals Internal Med., Sept. 19, 2017, https://annals.org/aim/fullarticle/2635326/relationship-health-insurance-mortality-lack-insurance-deadly [https://perma.cc/PQQ4-ZMLK] (“The odds of dying among the insured relative to the uninsured is 0.71 to 0.97”).

34 See Rhonda Abrams, Big Problems for Small Business on Health Care, USA TODAY (July 19, 2017,), https://www.usatoday.com/story/money/columnist/abrams/2017/07/19/big-problems-small-business-health-care/457952001/ [https://perma.cc/G3F7-JJTN].

35 Miriam Jordan, Family Separation May Have Hit Thousands More Migrant Children Than Reported, Jan. 17, 2019, N.Y. Times, https://www.nytimes.com/2019/01/17/us/family-separation-trump-administration-migrants.html [https://perma.cc/G4L3-LRPP].

36 Andrew Gumbel, ‘They Were Laughing at Us’: Immigrants Tell of Cruelty, Illness and Filth in US Detention, Guardian, Sept. 12, 2018, https://www.theguardian.com/us-news/2018/sep/12/us-immigration-detention-facilities [https://perma.cc/XG4U-FJG5]; In the Freezer, Human Rights Watch, Feb. 28, 2018, https://www.hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigration-holding-cells [https://perma.cc/5L8D-DAZT].

37 David F. Brand, Ever More Children Are Facing the Nightmare of Immigration Court on Their Own, The Nation, July 2, 2018, https://www.thenation.com/article/ever-children-facing-nightmare-immigration-court/ [https://perma.cc/2LDM-WHWP]; Misyrlena Egkolfopoulou, The Thousands of Children Who Go to Immigration Court Alone, The Atl.antic, Aug. 21, 2018, https://www.theatlantic.com/politics/archive/2018/08/children-immigration-court/567490/ [https://perma.cc/MA5R-3SP5].

38 See Tal Kopan, Kids In Immigration Court: A Maze With Life and Death Consequences, CNN (July 1, 2018, https://www.cnn.com/2018/06/30/politics/children-in-court/index.html [https://perma.cc/V3G7-RBZ3]; Christina Jewett & Shefali Luthra, Immigrant Toddlers Ordered to Appear in Court Alone, Tex. Trib., June 27, 2018, https://www.texastribune.org/2018/06/27/immigrant-toddlers-ordered-appear-court-alone/ [https://perma.cc/P6AK-H3BR].

39 See Victoria López, ICE Detention Center Says It's Not Responsible for Staff's Sexual Abuse of Detainees, ACLU, Nov. 6, 2018, https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/ice-detention-center-says-its-not-responsible [https://perma.cc/K8QH-FBAP]; Simon Romero, El Paso is On Edge After a Child's Death and the Release of Hundreds of Migrants, N.Y. Times, Dec. 27, 2018, https://www.nytimes.com/2018/12/27/us/immigrants-el-paso-release-death.html [https://perma.cc/M6W3-JAN4].

40 See, e.g., Time Staff, The Story Behind TIME's Trump ‘Welcome to America’ Cover, TIME, June 21, 2018, http://time.com/5317522/donald-trump-border-cover/ [https://perma.cc/T8QJ-87W5].

41 Jennifer Wright, The U.S. is Tracking Migrant Girls’ Periods to Stop Them from Getting Abortions, Harper's Bazaar, Apr. 2, 2019, https://www.harpersbazaar.com/culture/politics/a26985261/trump-administration-abortion-period-tracking-migrant-women/ [https://perma.cc/25QG-PRTH].

42 874 F.3d 735 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790, 201 L. Ed. 2d 118 (2018).

43 Id. at 737 (J. Millet, concurring).

44 Id. at 737-38 (J. Millet, concurring).

45 Bruce Bartlett, The Party of Medicine, Forbes, Aug. 28, 2009, https://www.forbes.com/2009/08/27/medicare-republicans-george-w-bush-opinions-columnists-bruce-bartlett.html#2b85192563ef [https://perma.cc/S3E4-XC88]. See also Joe Conason, The AMA's Unhealthy Obsession, Real Clear Politics (June 18, 2009), https://www.realclearpolitics.com/articles/2009/06/18/the_amas_unhealthy_obsession_97054.html [https://perma.cc/HX6F-BGA8].

46 Harriet A. Washington, Apology Sheds Light on Racial Schism in Medicine, N.Y. Times, July 29, 2008, https://www.nytimes.com/2008/07/29/health/views/29essa.html [https://perma.cc/9WME-JRQV].

47 See id. See also Michael L. Millenson, Medicare, Fair Pay, and the AMA: The Forgotten History, Health Affairs Blog (Sept. 10, 2015) https://www.healthaffairs.org/do/10.1377/hblog20150910.050461/full/ [https://perma.cc/CY7L-CYBX].

48 See generally Vann R. Newkirk II, America's Health Segregation Problem, The Atlantic, May 18, 2016, https://www.theatlantic.com/politics/archive/2016/05/americas-health-segregation-problem/483219/ [https://perma.cc/M93S-8AM7].

49 See generally David Barton Smith, The Power To Heal: Civil Rights, Medicare and the Struggle to Transform America's Healthcare System (2016); Chronicles of Dr. Charles Drew's Death, N.C. Museum Hist., https://www.ncmuseumofhistory.org/chronicles-dr-charles-drews-death [https://perma.cc/B9VC-AXZW] (discussing the legend of Dr. Charles Drew, an African-American doctor rumored to have died as a result of not being treated at a White hospital, and its basis in the reality of how African Americans suffered from “segregated, discriminatory medical care”).