Copyright 2007 Simon Lazarus. 

The intense national debate over what to do to restore the nation’s health safety net is focused on Congress, as the venue for improving existing programs and enacting new ones.  This is both understandable and appropriate.  What is a little less understandable,  and quite inappropriate, is that zero attention is paid to the courts.  There is virtually no focus on the role that the judicial branch has played, can play, and will play in ensuring – or undermining – the access of American citizens to affordable and adequate health care.

In fact, during the near-half century since the contemporary structure of national health entitlement programs was put in place, federal (and state) courts have hosted endless, wide-ranging, fierce battles over their terms, governance, availability to beneficiaries, and, especially, remedial options for beneficiaries to vindicate their rights and interests.  The decisions yielded by those battles have significantly affected the scope, effectiveness, and impact of those programs.

Regrettably, in the past two decades under the Rehnquist Court, much of that impact has been negative – that is, the jurisprudence spawned by the Rehnquist Court more often than not narrowed the scope of the nation’s health safety net laws, insulated officials from accountability for maladministration of them, and disrupted or blocked citizens’ access to benefits to which they were entitled.  Frequently these decisions frustrated rather than furthered the broad and generous goals that animated the Congresses which enacted the programs in question.  

 There is good reason to anticipate that this disconnect between liberal statutory policy objectives and judicial administration of the nation’s health laws will grow sharper and more bitter, and stay that way for a long time. 

    On October 19, I will present a paper at a conference of The Justice Partnership:"Forgotten Americans: The Future of Support for Low-Income Older Adults." The paper, from which this post is excerpted, will spotlight two arenas of the contemporary struggle over the federal courts’ role in shaping and implementing components of the nation’s statutory safety net.  The first is Medicaid, particularly the ability of Medicaid beneficiaries to enforce their statutory rights in court. The second area is employer-sponsored health plans, again looking in particular at the availability to beneficiaries of judicial remedies for violations of their rights.  Here the Court has turned a landmark 20th century reform, the Employee Retirement And Income Security Act of 1974 (ERISA), into what the late Judge Edward Becker – a Reagan-appointed Republican – describes as having "Evolved into a shield that insulates HMOs from liability for even the most egregious acts of dereliction committed against plan beneficiaries, a state of affairs . . . directly contrary to the intent of Congress."[4]  To the 134 million Americans covered by employee-sponsored plans, the Court has delivered a double-whammy – eviscerating ERISA’s remedial provisions while preempting state alternatives. 

 And finally, the paper will briefly suggest action agendas for the courts, for Congress, and, especially for advocates concerned with the integrity of these and other programs addressing the economic welfare of vulnerable individuals and constituencies.  The afore-mentioned advocates include many of the participants in the conference for which this paper has been written.  For us, I offer a suggestion to close out this opening section.  The suggestion is that the fault is not in our stars but in ourselves.  We could be witnessing the birth of a truly radical third branch of our federal government – a Supreme Court, with faithful legions in the lower federal courts, as well as conservative advocacy, academic, and political circles, dedicated to a vision of reactionary change that goes well beyond the culture war issues that monopolized public and political attention throughout the Rehnquist era. This has been a secret hiding in plain sight for well over a decade.  Yet we, who have had the facts before our eyes, have not taken the full measure of what they could portend.  More important, we have done far, far too little to bring the issues we have been fighting in court to the attention of the public, or to the bar of politics, where they belong.  When most Americans hear liberals warn of the dangers of a Supreme Court dominated by a John Roberts or a Samuel Alito, they think the threat is just about abortion rights or religious autonomy or the civil liberties of suspected terrorists.  Virtually no one has any notion that a militantly activist conservative Court could threaten safeguards critical to their health, their savings, and kindred bottom-line, economic security interests.  That neither voters nor politicians know this, let alone act on it, is our fault.  Changing that misperception should be, I suggest, a challenge at the top of our advocacy agendas.

    You can read the entire paper online after the Oct. 19 conference, on the NSCLC website.