Distributive injustices in U.S. health care

Distributive Injustice(s) in American Health Care

By Clark C. Havighurst and Barak D. Richman
Duke Law School, January 2007, Research Paper No. 140


This article explores the hypothesis that the U.S. health care system operates more like a robber baron than like Robin Hood, burdening ordinary payers of health insurance premiums disproportionately for the benefit of industry interests and higher-income consumer-taxpayers. Thus, lower- and middle-income Americans with health coverage pay not only for their own families' health care but also to support a vast health care enterprise that primarily benefits others, including many far more affluent than themselves. The system is able to finance itself in part because U.S.-style health insurance greatly amplifies price-gouging opportunities for health care firms with market power, creating a cost burden that falls ultimately on all premium payers equally, like a severely regressive head tax. Moreover, these same consumers also bear excessive costs for their own health care because, not seeing the costs they bear with any clarity (since the tax system makes those costs appear to fall on their employers rather than themselves), they demand unnecessarily costly coverage and resist efforts to economize - all to the benefit of the health care industry and others with reasons to value high-cost medicine. Lower-income insureds also appear, for several reasons, to get less out of their employers' health plans than their higher-income coworkers, despite paying the same premiums. Finally, insured individuals' lack of cost-consciousness also affects their attitudes and behavior as citizens and as voters, enabling politicians as well as industry interests to make choices on their behalf that systematically raise costs and foreclose economizing possibilities. The burden of excess health care costs and how it is distributed is rarely recognized as the fundamental issue of social justice it is. The purpose of this article is to make the question who pays and who benefits a principal concern of health policymakers.

From the text

Criticism of health care in the United States usually focuses first and foremost on the millions of Americans who lack health insurance of any kind. But the uninsured are not the only Americans whose welfare should concern policymakers. Because of the way private health services are financed on the one hand and dispensed on the other, the U.S. health care system burdens lower- and middle-income premium payers for the benefit of providers and high-income consumers. In this article, we seek to show the nature — and to suggest the cumulative magnitude — of the many regressive tendencies of the financing, regulatory, and legal regime governing the private side of U.S. health care. Parts II and III chart some of the numerous pathways through which too much money flows or appears to flow from the pockets of the less-than-affluent to the benefit of elite interests. Part IV observes how the legal and regulatory environment of U.S. health care has been structured according to the perceptions and preferences of these same elites, thus raising costs for everyone who seeks health coverage; because the marginal benefits of more and better health care are, of necessity, valued less by people with lower incomes and other unmet needs, significant social-justice issues are raised by the American legal system’s many ways of making families of modest means, if they want health coverage, pay for especially costly versions of it.

Our explicit concern in writing this article is that, for whatever reasons, the health care system’s systematic exploitation of the many for the benefit of the privileged few has been either overlooked, underestimated, or conveniently ignored by analysts and policymakers. We will also suggest, however, that the regressive tendencies we observe are no accident, but result from a combination of ideology and the political economy of health care. Specifically, we see a seemingly well-meant but essentially destructive policy bias — assiduously cultivated by the health care industry and shared by many commentators and policy analysts — in favor of more and better health care for all with only nominal regard for how much it costs or who bears the burden. Because unwillingness to view health care as an economic good accords so well with illusions about health care in the public mind, it has been easy for industry and other interests to manipulate people’s thinking about health care issues, both as consumers and as voters.

From the Conclusions

There should be little disagreement, philosophical or otherwise, with the two main premises of this article: (1) that the burden of paying for public goods such as health care for the uninsured, medical education, and pharmaceutical research should not fall disproportionately on those with less ability to pay and (2) that persons with lower incomes should not be compelled to pay, as part of the price of having any health insurance at all, either for coverage designed by and for elite interests or for health care that is consumed disproportionately by the well-to-do. This article has observed many ways in which, under these premises, the U.S. health care system unfairly exploits ordinary payers of health insurance premiums.

The day of reckoning in U.S. health policy could be hastened if populist politicians (liberal or conservative, as the case may be) would tell consumer-voters the truth about the extortion-like protection scheme being practiced on them by the health care system — which essentially forces them to choose between paying what the system demands and putting their families’ health in danger. This unpleasant truth has heretofore been kept from consumer-voters for complex reasons.

In our view, however, a responsible reform movement might gain political traction if middle-class consumers were given some sense of how much they are paying to support a health care industry essentially unaccountable for its cost-increasing actions.

Although this article has made our general policy preferences reasonably clear, it takes no firm position on the particular health policy that should replace the one we criticize for giving ordinary premium payers a horrendously bad deal while also serving inadequately those without any insurance protection. Indeed, we would not object if our observation of the major burdens imposed on consumers by private health insurance were cited as a reason to adopt a monolithic national health program, scrapping private health insurance altogether (except insofar as it might supplement the national system’s coverage). We hope, however, that populists and progressives invoking our concerns in such a cause will not simply claim that that market-oriented policies have proved unworkable and that big government is therefore needed to do the job. We have, after all, stressed that it is not private insurance as such but “U.S.-style” health insurance and government policy itself that generate the problems that concern us. Moreover, we have some confidence that, with altered subsidies and incentives for consumers, some deregulation of insurers and providers, substantial redesign of insurance products, and some tweaking at a few other points, the market would soon evolve so as generally to give consumers, in actuarial terms, both no more and no less than they choose, with limited public subsidies, to pay for.

The potential benefits of a policy based on principles of managed competition seem to us to be great and uncontroversial enough that responsible policymakers of different ideological persuasions should be able to find common ground on which to build bipartisan reform. Although highly threatening to special interests, such a policy would not be radical in itself but would instead, we think, be entirely in keeping with American values.

We hope that our observation of the serious unfairness of the burdens that the current system imposes on the majority of consumer-voters will help both to inflame and to enlighten a political debate leading to a more responsible national health policy — whatever that policy may turn out to be. The crucial thing is to find a fairer way to distribute the costs of health care.



By Don McCanne, MD

This paper was published in 2007, before the formal process leading to the Affordable Care Act was underway. Today, Austin Frakt, in his blog, “The Incidental Economist,” published excerpts from it, quite appropriately, because the reform process has not effectively addressed this important topic: Distributive injustices in U.S. health care.

If you read the full 77-page article, you will see that Clark Havighurst and Barak Richman provide convincing evidence in support of their thesis: “Lower- and middle-income Americans with health coverage pay not only for their own families' health care but also to support a vast health care enterprise that primarily benefits others, including many far more affluent than themselves.” Others have suggested that the burden of direct and indirect health care cost increases borne by low- and moderate-income workers is a major reason for the flat incomes of the workers in recent decades, as income and wealth inequality continue to compound.

Much of their discussion of distributive injustices concerns employer-sponsored plans. Very little in ACA addressed this problem. In fact, the excise tax (Cadillac tax) on employer-sponsored health plans will only increase the injustices for workers and their families. The expansion of Medicaid and the introduction of subsidies for exchange plans move in the right direction, but the subsidies are inadequate for those with moderate incomes, and they won’t even apply to workers with employer-sponsored plans.

Not particularly helpful in this article is the element of victim-blaming such as the allegation that workers demand unnecessarily costly coverage and that they resist efforts to economize. Although the authors claim to take no firm position on health policy changes, they do support greater consumer involvement through cost sensitivity, managed competition, and reducing health benefits to only those needed, at the same time that they caution against overregulation of health plans - concepts that generally are favored by conservatives.

However, they do state, “Indeed, we would not object if our observation of the major burdens imposed on consumers by private health insurance were cited as a reason to adopt a monolithic national health program, scrapping private health insurance altogether.” Considering their other ideological stances, it is not clear how sincere they are that they would not object, but it is clear that they do recognize that these injustices are a legitimate reason to adopt a single payer national health program.

By informing the public of the distributive injustices that exist in U.S. health care, we share the hope of the authors that their observations of the "serious unfairness... will help both to inflame and to enlighten a political debate leading to a more responsible national health policy.”