Proposals to ration health care in the United States meet a number of objections, symbolic and literal. Nonetheless, an acceptance of the idea of rationing is a necessary first step toward universal health insurance. It must be understood that universal health care requires an acceptance of rationing, and that such an acceptance must precede enactment of a program, if it is to be economically sound and politically feasible. Commentators have argued that reform of the health care system should come before any effort to ration. On the contrary, rationing and reform cannot be separated. The former is the key to the latter, just as rationing is the key to universal health insurance.

In an effort to clarify the concept of “medically futile care,” two types of futile care are identified: 1) care that produces no demonstrable effect; and 2) care that produces an effect that is believed by the speaker to be of no net benefit. It is the second type of futile care, when a patient or surrogate and the clinician disagree over the benefit that the patient will receive from an intervention, that is most interesting morally and that cannot properly be labelled medically futile. As such, decisions to limit access to care deemed futile should not rest with medical professionals. This Article argues for a limited duty of clinicians to provide life-prolonging and some other fundamental care that is equitably funded and desired by the patient while competent, even if the clinician believes that such interventions will produce no net benefit.

Health care rationing has gained greater visibility in the United States and the United Kingdom, for quite different reasons. As patients in both countries become more aware that potentially beneficial medical services can be denied them on economic — as opposed to purely medical — grounds, they are beginning to seek help from the judiciary. This Article contends that as rationing becomes more explicit, the doctrine of informed consent will come under increased pressure. The Article suggests that courts and legislatures consider imposing a legal obligation on physicians to inform their patients when potentially effective treatment is to be withheld for economic or other non-clinical reasons.

The structure and principal decision-making processes of the American health care system have, in recent years, evolved to closely resemble those of the legal-judicial system. This transformation reflects important common values that underlie both systems, including the values of life and liberty. This Article analyzes quasi-legal features of the health care system and draws conclusions about how those features might be used to address the problem of health care rationing. It concludes that coverage rules, if properly developed, can provide the sort of objective framework necessary to evaluate claims of health care needs. This Article also demonstrates that by defining legitimate health care needs, society can thereby potentially eliminate or forestall the need to ration necessary care. This can be achieved by using carefully developed coverage rules, rather than the informal rules currently in place, in conjunction with already existing due process methods for interpreting and implementing those rules.

In 1989 and 1991, the Oregon legislature enacted a series of initiatives to extend health coverage to uninsured state residents. Among these initiatives is an act that seeks to extend a modified set of Medicaid benefits to state residents with family incomes below the federal poverty level. This act also reduces benefits the state is now required to provide to Medicaid-enrolled women of childbearing age and children. This Article explores the legal context in which the Oregon Medicaid experiment must be evaluated. It argues that by reducing the level of coverage to which tens of thousands of exceedingly poor, Medicaid-eligible women and children are entitled, the experiment falls outside the scope of valid research that the United States Department of Health and Human Services may either sanction or fund. The Article also discusses the implications of the Oregon experiment, if approved, for the future direction of the Medicaid program in particular, and for health care reform for the poor, generally.

The increasing use of human tissues in medical research has spawned a host of ethical and legal debates. Legal analysis in this area has almost exclusively focused on the question of property rights in both the tissues used in research and in the resulting products. One illustrative case is Moore v. Regents of the Unversity of California, in which a patient sued his doctor for conversion of his spleen which had been removed for therapeutic purposes. The doctor later used the spleen to develop a patented and profitable cellline. This Comment examines and rejects the property law approach to this issue. Instead, this Comment proposes two legislative changes which would 1) eliminate any trade in human tissues and 2) require doctors to inform their patients of any research interest in proposed medical procedures. These proposals resolve the problem presented in Moore, and avoid the misleading, and inevitably unanswerable, question of property rights.