Abstract: The escalating cost of healthcare, coupled with scarce resources, creates a difficult and endless series of choices for democratic governments. People want access to necessary healthcare and are both frightened and angry when it is denied to them or to their loved ones. For elected officials and governmental agencies, it is extremely risky to openly ration care. It is also politically risky to raise taxes.
The United States has handled this conflict by hiding its most difficult rationing decisions. This is accomplished by distorting scientific data so that it appears to offer concrete, non-financial reasons for cost-saving coverage decisions.
This project examines the phenomena of hidden rationing and then criticizes it on two primary grounds. First, it is unethical. It violates democratic autonomy and intrudes in meaningful ways on the right to make informed decisions about one’s own healthcare. Second, it has destroyed public trust in those who make difficult resource allocation decisions. In the United States, this distrust has resulted in an excessively murky and panicked debate about healthcare reform, where clear language in proposed laws is read as a series of coded phrases written for the purpose of accomplishing hidden cost saving goals.
The United States is not alone in resorting to hidden rationing decisions. Resource allocation is obviously not a simple task for governments to engage in. It is, however, a necessary one. This project argues that for healthcare, it must be done in an ethically justifiable and dignity-enhancing manner. The current scheme of hidden rationing fails to accomplish either goal.
Professor Jacqueline Fox joined the faculty of the University of South Carolina School of Law as an assistant professor in 2005. She currently teaches health law, a seminar on bioethics and torts and has also taught administrative law. Prior to moving to South Carolina, Fox was a Donaghue visiting scholar in research ethics at Yale University. She has also completed a 2-year post-doctoral Greenwall Fellowship in bioethics and health policy at Johns Hopkins and Georgetown Universities. Before entering academics, Fox practiced health law in a solo practice, representing patients around the United States in their dealings with third party payers and transplant list placements. Immediately following law school, she was an associate at Hogan & Hartson in Washington, DC. She received a JD (cum laude) and LLM from Georgetown University School of Law and a BA from Sarah Lawrence College.
Fox's scholarship interests are focused on health law, primarily the relationships between justice, ethics, regulatory structures and markets. Her first article, published shortly after joining the faculty of USC, was about whether Medicare can consider cost when deciding whether to cover new medical technologies. This article was the subject of a conference at Yale University in December of 2006, held for the purpose of figuring out how Medicare can be changed so that cost considerations can be utilized. Her current scholarly work is in two areas. The first concerns the relationship between pharmaceutical and medical device manufacturers on one hand, and human research subjects on the other. The second is an ongoing examination of the choices we make regarding how to handle diseases that are introduced into humans through environmental vectors, for example wild migratory birds and avian flu.