“What Rights?” The Construction of Political Claims to American Health Care Entitlements

Despite a growing health care crisis, Americans remain reluctant to treat “health security” as a right or entitlement of citizenship. This article examines the effects of unmet health care needs on the beliefs that individuals hold about family, market, and state responsibility for health security. Drawing on a study of individuals caring for family members with chronic diseases, I find that when imagining solutions to unmet long‐term care needs, individuals evaluate a range of alternative social arrangements, but they select the model that is most consistent with previously existing beliefs about family, market, and state responsibility for care provision. This process of discursive assimilation, of integrating new needs for public provision with more familiar ways of thinking about social welfare, produces claims for entitlements that challenge existing social arrangements but do so within a welfare state framework that conceives of only a minimal role for the state in safeguarding social welfare.     

Policing the deinstitutionalized mentally ill: Toward an understanding of its function

Although the police have long been recognized as a community health resource in the United States, this role has expanded significantly over the past several decades as a result of the deinstitutionalization movement. From a critical perspective, this article provides an analysis of the relationship between this enlarged police role and the current American socio-political order, in general, and the welfare state in particular. It is argued that in the course of handling the mentally ill the police carry out a number of functions for both the welfare state and the socio-political order, and in doing so, shore-up the social conditions which have inhibited the development of a positive, long-term care policy for the mentally ill. This article discusses three such functions and identifies an alternative social arrangement; one in which the police would not have to serve as a support for liberal-capitalism and its attendant inadequate welfare state.     

Changing patterns of addiction and public aid receipt: tracking the unintended consequences of welfare reform

Sharp declines in welfare rolls since the passage of welfare reform legislation have led many to label it a social policy success. Using data from prereform and postreform samples of welfare applicants and recipients, as well as ethnographic data on welfare reform implementation, we examine three hypotheses based on concerns raised during the welfare reform debate about the possible effects of new policies on substance abusers and addicts: First, they would be "scared off," or discouraged from applying to aid by welfare's new requirements surrounding work and treatment. Second, they might be "weeded out," or face discrimination in the application process because of concerns about the difficulty of moving them successfully from welfare to work. Third, they might be "bumped down," or shifted to local aid programs rather than moving from welfare to self-sufficiency. Our empirical analysis finds no evidence of scaring off or weeding out, and some evidence of bumping down. Using ethnographic data, we offer some possible explanations for these findings by placing them in the context of policy change and implementation in the years following welfare reform.     

两种福利模式下的中西税权控制

西方发达国家的税权因应社会需求不断膨胀,从而引发了"福利法治国危机"。而中国在"单位型福利模式"的政策指引下,税权亦严重失范,但其问题更多地存在于公共支出柔性强、结构不合理等方面;因此,从宏观的比较视野观之,中西都面临着税权的有效规范与控制问题,但方法却是迥异的:西方欲通过控税实现"福利国"改造;中国则应以控税的方式探求适合自己的福利模式。     

Public Good, Private Protections: Competing Values in German Transplantation Law

Organ transplantation has become almost routine practice in many industrialized countries. Policy, ethical, and legal debates tend to center on fairness of allocation rules or alternatives to promote greater numbers of donations. There are also certain beliefs about the use of bodily materials that are often presumed to be homogenous across Euro–American societies. In Germany, however, the idea of using the bodies of some for the good of others, and the right to proclaim some bodies dead for large–scale medical and political purposes is highly charged. This is due to the historical context of medical experimentation, selection, and euthanasia under National Socialism, and the former East German socialist policies which intervened in the private lives and bodies of citizens. This article is based on an ethnography of organ procurement practices during the period when German policymakers struggled with writing a transplant law. Active public resistance revealed deep concern about state intervention in private matters and amplified the growing unrest over definitions of moral community in a changing, post–reunification society. The article shows how public disputes about health policy become a way through which societies deal with other social conflicts.     

Community Safety and Social Policy

This article examines community safety policy. In many countries community safety has become a replacement discourse for situational crime prevention, although in some countries such as the UK, it too is threatened with replacement by the narrower concerns of crime reduction. Community safety represents the apparent merging of the concerns of criminal justice and social policy, specifically over questions of social inclusion and exclusion. Focusing in the main upon UK policy, but also drawing upon experience elsewhere, this article scrutinises the policy of community safety, arguing that while it offers an inclusionary vision of crime control, its practice may be something rather different. More specifically, and in common with the trajectory of much advanced liberal social policy, in practice community safety may have an exclusionary effect. Thus, while community safety may represent the convergence of social and criminal justice policies, it does so on neoliberal rather than welfare liberal terms. It also means that community safety has a closer connection to policies of punitive sovereignty – particularly sentencing policies of mass incarceration – than might often be assumed.     

W(h)ither social work? Social work,social policy and law at an interface: Confronting the challenges and realising the potential in work with people needing care or services

Conclusion Social work asks of us all awkward questions, particularly since we are all members of the systems about which we are developing a critical knowledge base. This paper argues that social work, on the basis of a policy and political literacy, must engage in influencing higher levels of context. That is, it must engage with managers and policy makers about the objectives of welfare policy and the means by which they are to be realised — about issues of relevance to service users and to practice. This paper also suggests that other professional groups face the same awkward questions and must similarly engage in debates about the meaning of welfare, justice and rights. If social work in particular, and professional groups with which it interacts, lose the ability or willingness to question, they risk losing the empathy, values and practice skills which seek to counter the inequalities, internalised oppressions, alienation, and exclusion characteristic of contemporary social life. They risk identifying with the aggressor rather than using their position to promote an empowering difference.     

Administering Entitlement: Governance,Public Health Care,and the Early American State

This article explores the federal marine hospitals of the early republic, the first public health care system in US history. Beginning in 1798, the federal government collected twenty cents per month from mariners' wages and used this revenue to subsidize medical care for sick and disabled merchant mariners. Previous studies have traced links between marine hospitals and modern public policy. By studying governance from the bottom up, this article takes a different approach. I argue that jurists, physicians, and officials' regulation of sailors' entitlement to public health care facilitated and reflected a transformation of national authority. Between 1798 and 1816, sailors' entitlement was a local matter, based on the traditional paternalist understandings of maritime laborers as social dependents. By 1836, though, the federal Treasury redefined entitlement around a newly calculus of productivity: only the productive were entitled to care at the marine hospitals. This story about governance, federal law, and political economy in the early United States suggests that the early American state was a more vibrant participant in the market and society than has been previously understood.     

The use of the term "obesity" in deaths reported to coroners in Australia

There is growing government awareness of the increasing incidence of obesity in the Australian community and its potential impact on health policy issues. This column considers the appropriateness of the WHO definition of the term "obesity" and analyses its use by Australian forensic pathologists and coroners as a cause of death in "medical cause of death" statements. While families may have concerns about the use of this term in reference to a deceased family member, the use of "obesity" in medical cause of death statements could have considerable influence on coroners' recommendations with regard to health policy in this area.     

"Life Begins When They Steal Your Bicycle": Cross-Cultural Practices of Personhood at the Beginnings and Ends of Life

This paper examines two reasons anthropological expertise has recently come to be considered relevant to American debates about the beginnings and ends of life. First, bioethicists and clinicians working to accommodate diverse perspectives into clinical decision-making have come to appreciate the importance of culture. Second, anthropologists are the recognized authorities on the cultural logic and behaviors of the "Other." Yet the definitions of culture with which bioethicists and clinicians operate may differ from those used by contemporary anthropologists, who view culture as a contingent, contested set of social practices that are continually formulated and re-negotiated in daily interactions. Using ethnographic examples, the author argues that the qualities that constitute "personhood" should be sought in social practices rather than in cognitive capacities or moral attributes.     

The invention of health law

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal standards? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law's aims more modestly, based on acknowledgement that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated noninstrumentally, as separate ends. I conclude with an effort to identify the goals of health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies.     

The Human Genome Diversity Project: The Politics of Patents at the Intersection of Race, Religion, and Research Ethics

The patenting of human genetic materials provokes wide-ranging misgivings about the appropriate place and scope of intellectual property protections. The issues implicated range from anti-competitive practices in the market, the imposition of limits on biomedical research, increasing costs for health care, research ethics, potentials for racial discrimination, and various violations of human rights. Exploring controversies around the Human Genome Diversity Project, patents on genetic sequences, and patents on higher life forms such as the so-called "Harvard mouse," the authors find that North American patent policy has developed in the absence of necessary political debate. They link this de-politicization to the hegemony of neo-liberal principles most fully demonstrated by the incorporation of intellectual property under international trade negotiations. They point, however, to the recent emergence and increasing audibility of new social movements that seek to reposition issues of intellectual property in larger debates about human rights, distributional equalities, and social justice.     

How Situational Crime Prevention Contributes to Social Welfare

Situational crime prevention has been met with considerable scepticism from academic criminologists primarily for its indifference to social welfare. It has been seen as contributing to a law-and-order agenda with its focus on making public places secure for business and as supplanting social welfare policies as means of responding to crime. But situational crime prevention contributes more to social welfare than sceptics allow and its advocates (may) believe. Situational crime prevention has enjoyed its fullest and robust expression, not in the free-market, neo-liberal environment of America, but within the leading welfare states of Norway, Sweden and Denmark. This essay considers the politics of the situational approach, the alleged benefits of social crime prevention, criminalisation of social policy, unplanned social welfare benefits, assumptions about the role of business, and concerns about privacy, surveillance and control. The discussion centres on the European experience: the UK, France, The Netherlands and the Nordic countries.

Speech, privacy, and the power of the purse: lessons from the abortion "gag rule" case.

In Rust v. Sullivan, 59 U.S.L.W. 4451 (1991), the US Supreme Court ruled that neither the privacy interests of family planning clients nor the 1st Amendment interests of their counselors prevented the government from banning all discussion of abortions in federally funded family planning clinics. In doing so, the Court also reaffirmed its view that the state and federal legislatures have virtually unlimited discretion in limiting or conditioning social welfare programs, a view having even greater long-term implications for American health policy than the implications of Rust for the constitutional protection of abortion. Rust upheld the Department of Health and Human Services' 1988 directive prohibiting the use of any funds from Title X of the Public Health Service Act (authorizing family planning programs) in programs where abortion is a method of family planning. This means that a clinician may lawfully respond to a client's inquiry about abortion only with a denial that abortion is an option. Thus, while allowing women the constitutional protection to chose an abortion, the Court has allowed the legislature to freely use the power of the purse to discourage or prevent the choice of abortion. Rust's greatest impact may well be in its acceptance of the enormous power wielded by the government over funded activities, especially in health policy. Justice Rehnquist believes there is not constitutional right to health, welfare, or any other government benefit; the legislative branches of the government cannot be required by judicial interpretation of the Constitution to provide any particular benefit or service to anyone. Even when the government chooses to fund a particular benefit, it is free to condition that benefit with virtually no judicially enforceable limits on that discretion.     

“Bending” Evidence for a Cause: Scholar‐Advocacy Bias in Family Law

There are a number of salient public policy issues in the family law field that have invoked impassioned policy debates on a recurrent basis. In the absence of a body of research to address these critical concerns, advocates under the guise of social science scholarship have exacerbated the confusion and controversy by construing the scant available research evidence to justify their own ends, without regard to the relevance, quality, utility, and limitations of the studies. This is one of two articles on this problem that we have named “scholar‐advocacy bias.” In this article, we discuss the difference between truth in social science and truth in law. We identify common ways in which social science researchers and reviewers of research—wittingly or unwittingly—can become advocates for ideological positions and social policies at the expense of being balanced reporters of research evidence as illustrated by recent debates about overnight parenting of infants and toddlers. We also consider how adherence to established scientific principles and methods prevents the misuse of research in this way.     

Origins of the "Third psychiatric revolution": the Community Mental Health Centers Act of 1963

In recent decades the community mental health movement has achieved a dramatic reduction in the census of state and county mental hospitals in the United States, and hundreds of federally-funded community mental health centers have been established nationwide. At the same time, national controversy has arisen in response to what in places has seemed the haphazard process of implementing "deinstitutionalization" and the fate of many chronically mentally ill persons who are without needed social services and psychological care. Despite the widespread attention that this contemporary program has received, theoretical analysis of the complex social, scientific, intellectual, and political origins of America's community mental health policy remains deficient. This article examines the background and development of the Community Mental Health Centers Act of 1963, tracing how an important shift in national policy toward the mentally ill grew out of changing perceptions--among policymakers, professional groups, and the general citizenry in the post-World War II era--of the nature of the problem of mental illness.     

Support seeking,system avoidance,and citizenship: Social safety net usage after incarceration

Scholars have long described the American penal state and welfare state as joined by a common logic of social marginalization. But researchers have only recently begun to explore how the individuals who pass through the carceral system also interact with welfare state programs. Using data from the National Longitudinal Survey of Youth 1979, in this article, I explore how formerly incarcerated individuals make claims on the welfare state and how participation varies across social programs and states, as well as by race, drawing on theories of social welfare rights-claiming and system avoidance. In so doing, I provide the first nationwide estimates of the extent to which previously incarcerated adults use social safety net resources. I find that participation in welfare programs varies with incarceration history, program structure, and race. Rather than finding patterns consistent with system avoidance, I find that previously incarcerated White Americans seem to engage in active rights claiming, participating in public assistance programs more than similarly eligible never-incarcerated counterparts. All formerly incarcerated individuals, however, have limited access to more generous social insurance programs, and the shift to an increasingly employment-based social safety net seems likely to further limit access to the welfare state for the growing population of Americans leaving prison.     

Liberty without Equality: The Property-Rights Connection in a "Negative Citizenship" Regime

Why, in comparison with other liberal capitalist democracies, is the social welfare state so poorly anchored in American law and public discourse? Surely American political and social history have contributed much to the weakness of our “social state.” But law, too, has played a significant material, as well as ideological, role and has provided the terrain for much of our social development. This essay explores the particular contribution of the property-liberty nexus to the stunted development of positive liberty and social citizenship in the United States. It traces this connection from the natural rights and bourgeois Founders through several key conjunctures in American history, including Reconstruction, the New Deal, and the civil rights periods and compares some of the results with developments in Germany and the aspirations of American progressives. The essay contends that left and right alike have operated within a highly resilient and constricting framework that has made progress in the area of social citizenship both awkward and fragile. Although some possibilities for forward movement have always existed and still remain, the prospects for positive-liberty social-state law are not abundant: The master's house is not about to be taken down with his own tools.     

Why community compulsion became the solution - Reforming mental health law in Sweden

The aim of this article is to understand how compulsory community care (CCC) has become a solution in mental health policy in so many different legal and social contexts during the last 20 years. The recent introduction of CCC in Sweden is used as a case in point, which is then contrasted against the processes in Norway, England/Wales and New York State.In Sweden, the issue of CCC was initiated following high-profile acts of violence. Contrary to several other states, there was agreement about the (lack of) evidence about its effectiveness. Rather than focusing on dangerousness, the government proposal about CCC was framed within an ideology of integrating the disabled. The new legislation allowed for a broad range of measures to control patients at the same time as it was presented as a means to protect positive rights for patients. Compared to previous legislation in Sweden, the scope of social control has remained largely the same, although the rationale has changed — from medical treatment via community treatment and rehabilitation, to reducing the risk of violence, and then shifting back to rehabilitation in the community.The Swedish approach to CCC is similar to Norway, while New York and England/Wales have followed different routes. Differences in ideology, social control and rights orientations can be understood with reference to the general welfare and care regimes that characterize the four states.     

Contesting anticompetitive actions taken in the name of the state: state action immunity and health care markets

The so-called state action doctrine is a judicially created formula for resolving conflicts between federal antitrust policy and state policies that seem to authorize conduct that antitrust law would prohibit. Against the background of recent commentaries by the federal antitrust agencies, this article reviews the doctrine and discusses its application in the health care sector, focusing on the ability of states to immunize anticompetitive actions by state licensing and regulatory boards, hospital medical staffs, and public hospitals, as well as anticompetitive mergers and agreements. Although states are free, as sovereign governments, to restrict competition, the state action doctrine requires that "the state itself" make the decision to do so. Partly on the basis of problems in the political environment, the article criticizes courts for using a mere "foreseeability" test to decide whether a state legislature sufficiently authorized competitors to act in contravention of clear federal policy: "Few things are more foreseeable than that a trade or profession empowered to regulate itself will produce anticompetitive regulations."