The Courts, Health Care Reform, and the Reconstruction of American Social Legislation

Abstract Because of budgetary and other political pressures, American health care reform (and other social reform) legislation is often not enforced, or is implemented in ways that undermine its egalitarian goals. About 25 years ago the federal courts began to try to reduce this gap between statutory promise and policy reality by interpret-ing federal funding laws as creating rights for their ultimate beneficiaries, including low-income patients and the providers who serve them. This major innovation in the concept of legal rights was confirmed by hundreds of judicial decisions and accepted by Congress itself. Over the past few years, however, a new Supreme Court, led by Chief Justice William Rehnquist, has issued opinions denying that such rights exist and vastly increasing agency power to reduce important statutory provisions to vir-tually meaningless formalities. Thus, at the very moment that national health care reform is prominent on the political agenda, the federal courts are abandoning a rights-enforcing role that may be critical for the reform’s success. This article explains the struggle around the courts ’ rights-enforcing role, defends the role, and suggests ways In the summer of 1969, as a law student, I assisted Lee Albert, Sylvia Law, and other attorney