‘Elderly’ as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility

by Martha Albertson Fineman

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“The vulnerability of our embodied beings and the messy dependency that often comes in the wake of physical or psychological needs cannot be ignored throughout any individual life and must be central to theories about what constitutes a just and responsive state. The concept of vulnerability reflects the fact that we all are born, live, and die within a fragile materiality that renders all of us constantly susceptible to destructive external forces and internal disintegration.

Vulnerability should not be equated with harm any more than age inevitably means loss of capacity. Properly understood, vulnerability is generative and presents opportunities for innovation and growth, as well as creativity and fulfillment. Human beings are vulnerable because as embodied and vulnerable beings, we experience feelings such as love, respect, curiosity, amusement, and desire that make us reach out to others, form relationships, and build institutions. Both the negative and the positive possibilities inherent in vulnerability recognize the inescapable interrelationship and interdependence that mark human existence.

The state and the societal institutions vulnerability brings into existence through law collectively play an important role in creating opportunities and options for addressing human vulnerability. Together and independently institutional systems, such as those of education, finance, and health, provide resources or assets that give individuals resilience in the face of our shared vulnerability. A responsive state must ensure that its institutions provide meaningful access and opportunity to accumulate resources across the life-course and be vigilant that some individuals or groups of individuals are not unduly privileged or disadvantaged.

I. “Elderly” as an Identity

In 1935 the United States adopted a Social Security system that encompassed several social welfare and social insurance programs for those deemed unable to work to support themselves, including the “elderly.” Comparatively, economic relief for this group came late to the United States. In the 1880s, Germany enacted health, accident, and old-age legislation, and other European countries developed similar programs quickly thereafter: Denmark in 1891, Belgium in 1900, New Zealand in 1898, Austria in 1906, France in 1910, Australia in 1908, the United Kingdom in 1908, and Sweden in 1913. The American program was the result of substantial agitation and political organization on behalf of the elderly who had suffered greatly during the Great Depression. Although there were and are great similarities in old-age policies developed across these nations, consistent and significant differences in the quality and scope of programs also have been noted, with the United States ranking in the bottom of the comparison. At the time that the 1935 legislation was enacted, elderly persons (age sixty-five and older) encompassed the poorest demographic group in the United States, but subsequent increases in benefits and the provision of Medicare have resulted in the poverty rate for the elderly falling below that of other age groups. Today, traditional measurements of poverty assess the elderly at only a nine percent poverty rate as compared to adults eighteen to sixty-four years old (fourteen percent) and children (twenty-two percent). Recent reconsideration of how to measure poverty levels altered those rates considerably, because researchers have taken into account factors like medical expenses and benefits such as food stamps. Researchers using the alternative measures have recalculated the poverty rates at fourteen percent for the elderly, thirteen percent for adults between the ages of eighteen and sixty-four, and fifteen percent for children. The drop in child poverty is the result of taking into account the range of social welfare programs that target children, while the increase for the elderly is partly explained by their higher medical costs. This recent reconsideration also suggests that governmental provision of services and programs, such as housing and food stamps, can be just as important as the direct provision of economic benefits to individuals and families. Social Security provides a significant percentage of financial support for many Americans: thirty-nine percent of income for all elderly, and forty-nine percent of income for elderly women. The gender implications mark Social Security reform as warranting serious attention for those concerned with balancing family and work, and the toll that family caretaking has on ultimate wage and career successes, as well as growing income and wealth inequality more generally. Perhaps most significant for the current debates around the future of Social Security is the fact that the United States, unlike its peer nations, does not have a general universalized social welfare system. Our social welfare policy begins with an ideologically based premise that individuals are responsible for their own welfare and imposes expectations of self-sufficiency and independence on rich and poor, advantaged and disadvantaged alike. There is no general guarantee of housing or food, and until recently (and perhaps not for long) no right to health care, or access to jobs or higher education. Although old-age assistance is virtually universal, and eligibility is based on chronological age, other social welfare programs tend to be need-based and means-tested. Unlike the rest of society, the elderly have a baseline or floor of income security, which is complemented by access to health care through Medicare and/or Medicaid. Within the United States, the elderly are thus privileged with regard to eligibility standards and access to wage support programs. Importantly, because old-age assistance was not means-tested, the New Deal old-age provision has been largely provided without the stigmatization of dependency that so facilely attached to poverty programs over the past several decades. The accusations of deviancy and pathology that were leveled at poor single mothers and their families during the decade leading up to the welfare reforms of 1996 have not yet been applied to the elderly. This does not mean that there are no accusations associated with old-age assistance, however. Political legitimacy for the Social Security system was and continues to be based on both negative and positive assumptions applied to the elderly as a group. The negative and positive assumptions associated with Social Security and the elderly are wide-ranging and diverse. The negative assumptions revolve around capacity and capability, with images of the elderly as inevitably in “need” due to assumed physical and mental limitations that make employment unlikely and poverty therefore probable. The positive assumptions cast Social Security and Medicare benefits as deserved, flowing from the “contributions” the elderly have made throughout their lifetime. Social Security has historically been viewed as a form of social insurance, and the assertion was that having engaged in paid labor and contributed to Social Security over many years meant that the benefits were earned. Both sets of assumptions have been undermined by changes in national fortune and demographics, as well as shifting attitudes about the deserving nature of the elderly. Assumptions about the lack of employment and susceptibility to illness or disability specifically for the elderly as a group have been challenged by a variety of factors. Improved health, long life expectancy, and more flexible employment practices reversed the earlier retirement trend of the 1980s for a significant number of workers. Today, more Americans are working into old age, a development that was facilitated by changing laws. The Age Discrimination in Employment Act of 1967 originally prohibited discrimination against those workers forty to sixty-five years of age. It was followed by re-visions in 1978 that raised the upper age limit to seventy, which was further revised by removal of any upper limit in 1986. Other changes to existing laws provide the elderly impetus to work well into their later years. For example, the desire for many of the elderly to work past retirement age was facilitated by changes to Social Security, such as the elimination of a reduction in benefits if an individual recipient continued to work. The name of that legislation—The Senior Citizens Freedom to Work Act—reflected the reality that many individuals were not ready to leave the workforce in their mid-sixties. Not all of the elderly welcome options for longer participation in the paid workforce, of course. Improvements in the position of some older persons, however, have been the basis for reconsideration of the need of the elderly as a group. For example, there have been changes in the eligibility age for retirement. In addition, general economic conditions have led to longer workforce participation. The Great Re-cession of 2008 provided a powerful incentive for many to stay in the workforce. Losses in the value of home equity and retirement funds made the possibility of retirement remote for many. Thus, in a variety of ways, the relationship between old age and the ability to work has changed. Unfortunately, not all of the negative assumptions about diminished capacity have disappeared. The idea that Social Security is a form of social insurance with benefits earned and thus deserved has also been called into question. Not only are recipients charged with receiving more in benefits than they paid into the system, but the younger workers who are seen as supplying the funds for those benefits are viewed as unlikely to reap the same rewards when they retire. In response to these perceptions, recent debates about Social Security include various suggestions for privatization and means testing. These debates have set up a generational divide, and both popular media and political discourse create a dichotomy between “young-specific” and “old-specific” benefits and interests. The retirement of the baby boom generation is of particular concern, and the very size of this cohort has generated alarm and recast the terms of debate. In particular, there are accusations that this generation is a threat to the larger society’s well-being because it is unfairly commandeering current and future assets. The retirement of the boomers will cause a significant amount of economic and social problems for the next generation. The image of the elderly has devolved from those who have contributed, and thus are deserving, to those who are greedy and destructive.”

Fineman, Martha Albertson, ‘Elderly’ as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility (June 20, 2012). Emory Legal Studies Research Paper No. 12-224. Available at SSRN: https://ssrn.com/abstract=2088159 or http://dx.doi.org/10.2139/ssrn.2088159

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