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Excerpted from: Sylvia A. Law, Right to Health Care That Cannot Be Taken Away: the Lessons of Twenty-five Years of Health Care Advocacy, 61 Tennessee Law Review  771 (Spring 1994) (82 Footnotes) (Full Document)


SylviaLawFor almost twenty-five years I have worked with colleagues in public interest practice and with low-income clients on issues of welfare and health care. It is a very special pleasure to reflect on this experience here in Tennessee, home to some of the nation's most effective health law advocates. Middle Tennessee Legal Services, Rural Legal Services of Tennessee, Gordon Bonnyman, Lenny Croce, and Neil McBride have all earned national reputations for excellence in implementing the ideals I advocate in this lecture.

I address here the lessons of our history of advocacy for low-income people seeking health care services. I will use this history to assess President Clinton's proposed Health Security Act. The Clinton health plan is often called the most important domestic legislation since the Civil Rights Act and the Voting Rights Act of the mid-1960s, or even since the New Deal. While I focus on the Clinton administration's proposal, the issues addressed arise in any health care system. My analysis of the Clinton plan relies on the work of a broad coalition of health care advocates who are now seeking improvements in the administration's proposal.

In 1965 I was a civil rights organizer who went to law school to improve my capacity to make social change and to earn a living. As a student, I worked for Mobilization for Youth (MFY), on New York's Lower East Side. I got to know the late Edward V. Sparer, one of the wisest leaders of welfare and health law advocacy the nation has ever known. Sparer founded MFY--the first neighborhood legal services program in the United States. It developed a model of community-controlled legal services that was followed by the federal government when it created the national legal services program. Sparer went on to create the first legal services backup center, the Center for Social Welfare Policy and Law, where I worked upon graduation from law school.

Both Ed and I were initially drawn to welfare advocacy by the brutal problems confronting poor women with children. A key principle of this initial legal services program was that the lawyer's job is to empower clients, not to impose the lawyer's values or even to win things for people. Thus much effort went to supporting clients and community organizers who sought to organize the poor to fight for themselves. For several years the National Welfare Rights Organization (NWRO) was an effective advocate for its members and Sparer served as its general counsel. While the NWRO and their lawyers achieved some important and lasting victories for welfare recipients, by the early 1970s it was apparent to Sparer that it was not possible to achieve deep social change with a constituency that consisted solely of poor women with children. Thus, in 1969, Sparer turned to health care advocacy as a means to address issues of mutual concern to people who are poor and those who are not. He was a principal founder of the Health Law Project and the National Health Law Program. I have been blessed to work with both of these groups.

Here are some lessons I have learned from thirty years of health advocacy.

[. . .]

Lesson No. 1: Programs That Serve Only the Poor Tend to Be Poor Programs.

Lesson No. 2: Effective Health Law Advocacy Is Forward-Looking, Multifaceted, and Systemic.

Lesson 3: “A Right to Health Care That Cannot Be Taken Away” Requires Access to Effective Remedies to Make It Real.

Lesson No. 4: Independent Advocates Are Essential to Enforce the “Right to Health Care That Cannot Be Taken Away.”

Lesson No. 5: Given Deep Patterns of Racism and Sexism in American Health Care, These Problems Will Persist Unless They Are Exposed and Challenged.

Lesson No. 6: Neither Individual Rights Nor Individual Purchasing Choices Are Sufficient to Produce Quality Medical Services. Organized Consumer Voice Is Essential.

[. . .]

In the spring of 1994, when the Charles Henderson Miller Lecture was delivered, it seemed likely that some form of national health reform would be adopted by the 103rd Congress. As this Article goes to press a few months later, Congress has adjourned without adopting the most minor measure to address the nation's health care problems.

Many factors contributed to the failure of the proposed Health Security Act. Republicans and conservative commentators see the failure of health reform as a resounding rejection of government, liberalism, and social reform. Progressives and supporters of a government-sponsored single payor plan believe that the Clinton proposal was too moderate. Retaining a significant role for private insurance required a complex regulatory structure to restrain the excesses of the profit motive and failed to offer the public a clear choice. Certainly the lobbyists for the insurers and other special interests were a major factor in defeating health reform.

Public opinion polls suggest that there is some truth to all of these explanations. Fifty-six percent of Americans polled in September 1994 said that the Clinton plan had “too much government.” But an identical percentage also blamed “special interests and lobbyists” for the defeat of health care reform. Health care still ranks second behind crime as a top concern among voters, and Democrats still enjoy a nearly two-to-one advantage over Republicans in the public's mind as the party best able to improve the health care system. Whatever the future of health reform, the issues addressed here endure. 

Elizabeth K. Dollard Professor of Law, Medicine, & Psychiatry, New York University; Director, Arthur Garfield Hays Civil Liberties Memorial Program.