Annals of Health Law, Vol. 19, No. 1 (2009-2010), pp. 73-78. Originally uploaded at SSRN

Abstract

The famous preamble to the United States Declaration of Independence reflects a concise and eloquent understanding of the Lockean social contract theory that underpinned the foundation of the original American government: that free people will naturally find it in their self-interest to leave the state of nature (and the tyranny of foreign rule) and join a society where a legitimate sovereign power and the rule of law protect the citizens' fundamental rights. As of the writing of this essay, a new decade approaches and both the U.S. Senate and House have passed historic healthcare reform bills. The two legislative bodies, however, have not yet reconciled the differences between the two bills nor realized the scope of political compromise necessary to get the final bill signed into law. My goal in this essay is not to predict what the final healthcare reform bill will look like. Rather, I will posit as a theoretical matter that, whatever the merits of the final 2010 healthcare reform bill to improve the access, cost, and quality of American healthcare, this effort will necessarily be deficient and need significant reformulation as it has been formed outside of a political context in which basic healthcare is an intrinsic part of the American social contract. In other words, to achieve lasting, rational, and comprehensive healthcare reform there must be a political consensus in the U.S. that healthcare is a basic fundamental right, not merely an important legislative concern subject to compromise among various interests. To illustrate this point, I will briefly examine the historical view of healthcare in the U.S., how other developed countries have viewed healthcare, and how the U.S. has recently dealt with non-healthcare crises that have seemingly imperiled the American social contract.

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