Question

Discuss the three branches of government, the judicial process, and the relationship(s) to U.S. public health

Answer 1

Influence of Government

In this country, both public and private sectors have major roles in the health care system. With regard to the public sector, all three branches of government -- the legislative, executive, and judicial -- influence health care decisions.

The legislative branch determines such things as what services or programs of care the government will pay for and for which members of society. By subsidizing the education of health care workers, it directly influences the number and type of workers. Through state licensing laws, it determines which health care workers may perform what services, and in legislation related to reimbursement, it determines who can be paid for performing various services. In-laws regulating the use of controlled substances, the approval process for drugs and devices, and many other clinical aspects of care, the legislative branch influences what can be done in health care. These decisions or health policies are made at national, state, and local levels, and which level has responsibility for making laws in certain areas is often a matter of debate.

The judicial branch of government is responsible for interpreting laws related to health care. For example, through the interpretation and application of antitrust law, it determines when groups of health care professionals or hospitals are using illegal, anticompetitive practices to protect their delivery of services. The executive or administrative branch of government develops rules and regulations that further interpret the laws and oversees the implementation of various health care programs.

The private sector is expected to operate within policies set by the government but also has a great deal of influence on what public policies are enacted.

Modern health policy poses complex legal, ethical, and social questions. 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 self-determination, privacy, and non-discrimination. Numerous papers have addressed the question, What is sound health policy? However, assessments rarely address the following important questions: Which bodies are best equipped to solve which health policy problems and why? What data do policymaking bodies need? How can that data best be made available to decision-makers?

The United States is a highly diverse and complicated society. Many groups "weigh-in" on significant health policy issues. America's expansive range of policymaking bodies and groups seeking to influence policy render it impossible to offer a systematic and comprehensive analysis of health policy formulation. To make an examination of policy development manageable, I will work from the following assumption, which is partly but not wholly, valid. I will assume that the formal development of health policy is the primary preserve of the three branches of government the executive, legislature, and judiciary-at the state and federal levels. In practice, many other bodies make policy (such as professional associations or ethics groups through guidelines.)This essay focuses on official government policymaking that is legally binding or at least has persuasive force in law. It evaluates the relative strengths and weaknesses of each branch of government with respect to health policy formulation. It also examines sources of information and influence that help drive policymaking. These include presidential and congressional commissions, task forces and advisory bodies, professional and trade associations, and public interest, consumer, and community-based groups.

Although I argue below that health policy is best formulated through rigorous and objective assessment of data, I do not support any restriction on the right of interest groups to publish their views and to appropriately lobby policymakers. A robust constitutional society that values freedom of expression and unrestricted participation in the political process should support a role for interest groups in health policy formulation. It should not censor or fetter the views of those who seek to participate in the process. Yet, the various branches of government should be able to rely on full, objective information and advice based upon sound scientific evidence. This essay will explore some mechanisms for achieving these aims.

Health policy encompasses a vast range of issues in health care, public health, and biotechnology. This essay selects illustrations from several areas that, over a period of time, have generated a great deal of policy formulated by each branch of government. These include reproductive rights, the right to die, and mental health. I will also use examples in the fields of health care reform, AIDS, and civil rights of persons with disabilities.

What factors made these issues particularly suited for judicial decision making? At least one of three factors were common to each of these areas of health policy.

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. The issue of preservation of life is central to both abortion and termination of life-sustaining treatment. While the mental health cases do not engender the same emotion, they still involve sharp differences between professionals and civil libertarians about the right of society to confine and to treat persons with mental illness. Indeed, the culture of the time influenced much of the discourse, and ultimately, litigation. Rosenhan's " On Being Sane in Insane Places, "Szasz's "Myth of Mental Illness," and Goffman's "Asylums" each symbolized the antipsychiatry movement of the day. Courts in some ways are uniquely suited for dealing with such areas of social divisiveness. They can often remain aloof from the controversy and rely on "neutral'' legal doctrine. The legislative and executive branches of government are more vulnerable to interest groups, lobbyists, and financial pressures.

    The second factor common to at least one of these health issues is the absence of formal policy existing at the time of the litigation. When the NewJersey Supreme Court was deciding Karen Quinlan's case, there was little legislative or executive guidance on the termination of life-sustaining treatment. The court was simply deciding the case with which it was presented. It had to craft a reasoned decision based upon traditional legal and ethical principles: respect for persons, autonomy, and privacy. The courts that followed Quinlan had to look to prior judicial decisions in other jurisdictions because the legislatures, for the most part, still had not acted. The courts in the right-to-die cases appeared to be filling a vacuum in the policy. This second factor suggests that the courts are more likely to intervene in areas where there was a lack of consensus or established policy.

Prior to 1973, some liberalization in the scope of lawful abortions was evident in several legislatures, but few statutes approached the breadth of the privacy right decreed by the court in Roe. Most of the existing legislation was haphazard and inconsistent. It often did not balance individual interests with those of the state. It is an open question as to whether the Supreme Court would have intervened in quite so decisive a manner if the more settled policy on abortion rights had existed. The Court moved, at least in part, because of the absence of a national consensus on the issue.

Judicial decisions in mental health cases, unlike abortion or right-to-die cases, did not simply fill a policy vacuum. At the time of this litigation, all 50 states had civil commitment statutes that were fairly uniform in content. The courts appeared to usurp the field by requiring the legislatures to enact new statutes to comply with constitutional guarantees.

The judiciary, then, has sometimes acted as a pathfinder when there was a paucity of established policy. In an atmosphere of uncertainty in health policy, the courts can answer questions on a case-by-case basis. It is only after years of case law that a consistent policy emerges and gains public acceptance. At that time, the legislature can begin its work in clarifying and codifying policy choices.

      A third characteristic shared by all three health issues is the presence of a fundamental claim to human rights by individuals and groups. These human rights claims weighed heavily in the balance of scientific, social, and ethical issues. In the fields of reproductive rights and the right to die, the courts repeatedly echoed the theme of individual choice, self-determination, and privacy. In mental health cases, the courts emphasized fundamental claims to due process and liberty. This third factor (i.e., the central importance of human rights) is likely to be the most important in deciding whether the courts will, or should, intervene in significant cases of health policy. Unlike the executive and legislative branches of government, the courts are suited to protect the rights of individuals or groups. They are less concerned with pleasing the majority and less likely to give in to majoritarian pressures that may oppress vulnerable individuals or groups or restrict their rights. The judiciary also has appropriate criteria and procedures for ensuring the protection of individual rights. Courts can invalidate oppressive state action through constitutional review and can protect minorities through civil rights decisions. 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 decisions.

The Judiciary

In theory, the judiciary provides the least ideal forum for the development of many health policies. Certainly, judges are thought to be impartial and able to assess evidence and arguments from a variety of sources objectively. However, many judges are insulated from public accountability. They are appointed by political figures, often for their political ideologies; they may have long-term or life appointments, and many are not subject to election or reappointment. Judges usually bring legal skills to the bench; they may lack experience with scientific or ethical thinking. They rarely receive education or training in health issues.

More importantly, the adversarial nature of judicial proceedings militates against a prominent role for judges in health care policy formulation. The information that judges receive is often partial and incomplete; also, attorneys usually present narrow legal arguments that may not endorse the most desirable policy position. The legal system frequently assumes judges can produce a balanced, accurate decision after hearing two extremist versions of an issue. Yet, each version may be biased or unreliable. Courts lack the tools for assessing the validity of complex scientific or technological evidence and arguments. Courts rely on "expert" witnesses. However, expert witnesses are usually paid for their testimony; this presents a conflict of interest. Also, they may not be the most qualified in their fields, and they may offer opinions that the majority of their peers do not accept and/or that may not have been subjected to adequate scientific inquiry.

The Legislature

If the judiciary is the least suited branch of government to develop health policy in many areas, the legislature may be the most suited. The legislature is thought to be impartial and publicly accountable; it has the capacity to collect full information from a wide range of objective sources; part of its mandate is to protect and promote the health of the public, and it has the power to engage in a lengthy and deliberative process in enacting legislation. Classic American federalism suggests that the legislature possesses the special authority to develop policy. In essence, the power to make law reposes exclusively in the legislature, though it may delegate rule-making and regulatory powers to departments in the executive branch. The judiciary and the executive (apart from the veto power) are not permitted to intrude into its legislative powers. Article I, Clause 8, of the U.S. Constitution, empowers Congress to "make all Laws which shall be necessary and proper for carrying into Execution.... the powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The state legislatures have police powers to protect and promote the health, safety, and morals of the community. This power may establish the legislature as the appropriate policymaking body in most circumstances.

The Executive

The executive branch of government brings to health policy formation many of the same benefits as the legislature. The executive branch can be both objective and accountable. Certainly, the chief executive is a political party figure subject to many of the ingrained ideologies that many politicians bring to their decision making. Yet, as the head of his or her party, the chief executive may be free to divert from party political positions or to change those positions. The executive branch, moreover, usually has many agencies concerned with health and social policy. Individuals who work in those agencies often are not connected to political parties and bring a wide body of knowledge and expertise to their fields. This creates enormous possibilities for impartial, accountable, and comprehensive assessments of health policy.

In many ways, the executive branch of government is in the best position to marshall all of the evidence, data, and reasoning necessary for the formulation of sound health policies. The U.S. Department of Health and Human Services, for example, has an unequaled capacity to obtain data in areas of clinical and policy research (e.g., the National Institutes of Health and the Agency for Health Care Policy and Research), prevention, and public health strategies (e.g. the Centers for Disease Control and Prevention), and financial impacts (e.g., the Health Care Financing Administration). While the executive branch does not hold hearings like the judiciary or the legislature, it can solicit written and oral comments from organizations and experts. It frequently holds open meetings to discuss public health strategies. It can, moreover, receive rigorous assessments of difficult health science and policy questions through contracts and grants with research institutions.

Presidents and governors can use their agencies wisely to achieve substantial health benefits for the public. The Human Genome Initiative, for example, was designed not only to answer many of the essential scientific questions about the detection, prevention, and treatment of genetic conditions, but also the ethical, social, and legal questions.