Society's Choices Social and Ethical Decision Making in Biomedicine (1995) / Chapter Skim
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The Formulation of Health Policy by the Three Branches of Government
The Formulation of Health Policy by the Three Branches of Government
Pages 335-357
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From page 335... ...
The goal of health policy is to protect and promote the health of individuals and the community. Government officials can accomplish this objective in ways that respect human rights, including the right to selfdetermination, privacy, and nondiscrimination.
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From page 336... ...
CHARACTERISTICS OF SOUND POLICY DEVELOPMENT What factors are important in developing sound health policies? The policies themselves are rarely subjected to scientific scrutiny.
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Several factors are important for developing sound health policies. First, to the extent possible, the policymaker should be objective and dispassionate.
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From page 338... ...
Overbroad policies target a population that is much larger than necessary to achieve the health objective. For example, the Bush and Clinton policy that interned or repatriated all Haitian refugees with HIV infection was overbroad, because it affected all of the group, regardless of whether individuals engaged in safe sex or other practices.
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From page 339... ...
This step requires an inquiry into the nature, invasiveness, scope, and duration of human rights violations. Does the policy interfere with the right to liberty, autonomy, privacy, or nondiscrimination?
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From page 340... ...
They rarely receive education or training in health issues.7 More importantly, the adversarial nature of judicial proceedings militates against a prominent role forjudges in health care policy formulation. The information thatjudges receive is often partial and incomplete; also, attorneys usually present narrow legal arguments that may not endorse the most desirable policy position.
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From page 341... ...
The courts used the newly construed right to privacy to prevent the state from interfering with the sale and distribution of contraception.~3 The Supreme Court explained that contraception concerns "the most intimate of human activities and relationships."~4 The Supreme Court stated that the constitutional promise of privacy protects not only the right to use contraception, but also the right to decide whether to carry a fetus to term.~5 It defended a woman's right to choose, and the privacy of her relationship with her physician, through the mid-1980s.~6 In recent years, the changing composition of the Supreme Court has led to a significant erosion of reproductive rights and medical privacy. The Court upheld the authority of the state to restrict the use of public employees and facilities for the performance of nontherapeutic abortions.~7 The Court also upheld a Department of Health and Human Services regulation prohibiting federally funded family planning clinics from counseling or referring women for abortions.
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From page 342... ...
and in state legislatures to protect reproductive privacy use the same "fundamental rights" analysis that the Supreme Court employed in Roe.23 Courts also developed thoughtful rulings on surrogate motherhood24 and artificial reproduction that some state legislatures are emulating.25 The judiciary has also displayed leadership in formulating policy around the right to withdraw life-sustaining treatment, beginning with the Karen Ann Quinlan decision of the New Jersey Supreme Court in 1976.26 While the U.S. Supreme Court has rarely extended the right to privacy beyond reproductive decisions,27 many state courts have interpreted the federal and state constitutions as conferring a right to refuse life-sustaining medical treatment.28 The court in Bouvia held that a patient's decision to forego medical treatment "is a moral and philosophical decision that, being a competent adult, is hers alone."29 The right to refuse medical intervention has been extended to persons who have become incapable of making a decision30 and those who have always been incapable.3~ The courts have almost uniformly respected the decisions of surrogates, particularly family members, in making choices for persons who could not decide for themselves.32 The courts have defined the circumstances under which treatment could be terminated with greater specificity over the years.
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From page 343... ...
During the 1970s, the courts began a process that would transform mental health policy in America. The courts struck down mental health statutes as unconstitutionally vague and insufficiently related to the states' valid interests in protecting the public from harm.37 The courts refused to allow broad discretionary language in civil commitment statutes if it described psychiatric decision making purely in medical terms, such as "mentally ill," "in need of treatment," personal "welfare," or "best interests." Nor would the courts allow civil commitment in the absence of rigorous due process including the right to notice, counsel, and a hearing.38 The courts constitutionally required the standard of proof at civil commitment hearings to be more than a preponderance of evidence; typically, commitment demands "clear and convincing evidence."39 More recently, the courts also developed standards for refusal of treatment by persons with mental illness.40 Mental health legislation in America has been fundamentally reformed to comply with the constitutional requirements set by the judiciary.
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First, each issue involved emotionally charged social questions that divided the public. The right to life is perhaps the single most controversial and enduring problem in health policy formulation.
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Courts can invalidate oppressive state action through constitutional review, and can protect minorities through civil rights decisions.46 While the legislature or executive may focus more strongly on using science to promote the health of the community, these two branches sometimes overlook or insufficiently weigh human rights concerns. Where human rights become a defining value in health policy, courts may be the most appropriate body to make .
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From page 346... ...
Legislative committees receive written and verbal suggestions from interested groups, and often request information from more objective sources. Legislatures, if provided with adequate resources, can establish standing bodies designed to help gather and analyze the scientific data necessary for sound policy development.
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On almost every policy issue of consequence, political parties found little common ground. Indeed, when particularly divisive issues such as abortion policy or fetal tissue research are at stake, entire pieces of legislation can be thwarted through noncooperation, filibusters, and threats of a presidential veto from the opposing political party.
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Yet, this is a politically difficult area to tackle because of the influence of organizations representing older populations. Similarly, legislators often give deference to the plaintiff's bar on medical malpractice or the AMA or health insurers on health care reform.
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There was widespread consensus around the antidiscrimination principles inherent in the legislation. The legislative debates literally rang with the virtues of equal opportunity and human rights for persons with disabilities in society;64 diverse interest groups came together and worked in a coordinated fashion in their lobbying efforts; and there was an absence of a vocal and organized opposition.
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From page 350... ...
A classic example of legislative failure to produce a badly needed public benefit is in health care reform.68 Health care reform, on its face, ought not to be inordinately difficult for legislatures. A substantial majority of Americans express dissatisfaction with the health care system.69 Indeed, both candidates in the 1992 presidential campaign supported health care reform.7o,7~ The current system has failed to provide universal access to health care with an equitable sharing of benefits and burdens.
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From page 351... ...
Organized medicine is concerned with limits on the doctor's income and freedom to practice; the organized bar is concerned about malpractice reform; the health insurance industry is concerned about its survival and the ability to continue traditional underwriting practices; consumers worry about loss of the absolute right to choose their doctor; and the business community and taxpayers are concerned about the cost. The ability of Congress to rise above the strong competing interests and influences to provide a fair and effective health care system remains in doubt.
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The EEOC has recently issued interpretive guidance suggesting that the ADA prohibits discrimination in health insurance coverage against particular individuals or groups with specific diseases.82 Despite the significant potential for the executive branch to develop health policy with all the benefits of the best research and rigorous assessments, it has frequently failed to follow sound scientific recommendations. This has resulted in administrations ignoring or rejecting the advice of scientific and policy commissions.
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From page 353... ...
The strongly ideological positions of the executive branch often allows it to lose sight of the questions that are central to the development of sound health policy—will the policy be effective in protecting and promoting the health of the public and will it adequately safeguard human rights? CONCLUSION As this paper is being written, the President's Task Force on National Health Care Reform, chaired by the First Lady, has completed its work, and the President has sent a bill to Congress for systematic reform of the health care system.
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5. A considerably more detailed "human rights impact assessment" is contained in Gostin L., Lazzarini, Z., Public Health and Human Rights in the AIDS Pandemic.
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The AIDS Litigation Project: A national review of court and human rights commission decisions, Part II: Discrimination.
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Bridging the gap between expert and public views on health care reform.
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82. Equal Employment Opportunity Commission.
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