An Excerpt from: Against the ‘Safety Net’

by Matt Lawrence

II. THE SAFETY NET TERM IS A RORSCHACH TEST IN CONTEMPORARY SCHOLARSHIP

What do you think of when you hear or read the term “social safety net”? Which specific programs are included? Which are excluded? Are student loans part of the safety net? Life insurance? Is the U.S. Equal Employment Opportunity Commission part of the safety net? Mandatory vaccination? Are needle exchange programs?

Odds are, a writer’s or reader’s understanding of the term matches one of five very different senses in which the term is used in contemporary health and welfare law and policy scholarship. The safety net is thus a Rorschach test for health and welfare law and policy: what it means shifts, narrows, or expands depending on the writer’s or reader’s underlying vision of the problems that health and welfare policy seek to solve and the role of law in that effort.

Most narrowly, some see the safety net the way that President Reagan and his Administration employed it, as programs providing cash or in-kind support directly to the “deserving poor”—that is, those who, through no “fault” of their own, are young, sick, incapacitated, or otherwise dependent. In short, they see the safety net as encompassing subsistence programs that are both means and morality tested. Second, but closely related, others envision all means-tested subsistence programs, not only those that are restricted to the subset of the poor who are in some state-labeled sense “deserving.”

The distinction between these two conceptions of the safety net as comprising morality-tested or means-tested subsistence programs mirrors the legally controversial shift that the Affordable Care Act (ACA) sought to bring about in the Medicaid program, which provides health insurance to some low-income individuals. Historically Medicaid, building on its roots in charity care, was available only to particular classes of “‘[d]eserving’ poor.” The ACA attempted to expand Medicaid, however, to be more purely means tested, dispatching with prior moral conditions on eligibility (with important exceptions). The United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius made this aspect of the ACA optional for states, so that effort to expand Medicaid has only been partly successful and nationwide the applicability of moral conditions on Medicaid eligibility varies from state to state.

These first two conceptions of the safety net also illustrate the rhetorical function of the metaphor employed by President Reagan—that is, obscuring the pivotal question of who is eligible for protection. Two people who hold these two underlying conceptions of the safety net could have an entire conversation about the safety net without realizing, discussing, or engaging their underlying disagreement about the fundamental question of whether state-sponsored subsistence programs should be restricted to those who are in some moral sense deserving.

Third, many conceive of the safety net as comprising not just programs that support those in poverty but also programs that reduce the likelihood that individuals who are not in poverty will become impoverished. In short, they see the safety net as including poverty-prevention programs. This conception holds on to the goal of addressing poverty but recognizes that “as U.S. society has evolved, programs with benefits that flow substantially—even primarily—to those other than the poor and near-poor are essential for preventing or allaying poverty.” So understood, the safety net includes tax incentives to purchase life insurance, buy health insurance, and save for retirement. Indeed, so understood the safety net can even include consumer bankruptcy in recognition of the fact that those facing crisis and lacking state help often turn to consumer credit to finance their own support, regardless of whether they can afford it.

These first three conceptions of the safety net all focus on poverty, but the former two are focused on those currently facing poverty and the third includes those who might come to face poverty. This distinction between the “deserving poor” and “anyone in need” conceptions of the safety net, on the one hand, and the “poverty-prevention” conception, on the other, mirrors related distinctions that arise using differing terminology in various areas of health and welfare law. These include the distinction between identified and statistical lives in medical ethics and health policy; the distinction between harm reduction and prevention in public health; the distinction between ex ante and ex post reforms in law and economics; and the distinction between addressing resilience and addressing dependence in vulnerability theory.

Fourth, the safety net may be understood at maximum breadth as including all health and welfare programs or all such programs relevant to a given topic or group (such as a safety net for workers). In particular, as scholars have recognized the importance of social determinants of health beyond health care or health outcomes—including education, transportation, and housing, among others—they have used the term “safety net” in ways that encompass all programs that influence such determinants. Followed to its logical conclusion, the safety net so understood encompasses all state-based efforts to alter the laws, institutions, behaviors, and environmental factors that constitute the human ecosystem.

Fifth and finally, a very specific and limited definition of safety net describes a discrete subset of health care providers. Here, health care safety net refers to providers who accept patients regardless of their ability to pay—that is, open-access providers. This is inherently confusing because so understood, safety net providers means those that treat people who do not have health care through the programs (such as Medicare, the ACA, and Medicaid) that many others view as part of the safety net.

III. THE SAFETY NET METAPHOR TAKES SIDES ON DISPUTED NORMATIVE AND EMPIRICAL QUESTIONS

The safety net metaphor is not just confusing, it is also problematic because it implicitly takes sides on disputed normative and empirical questions. As discussed in this Part, the visions of the subject of law as an autonomous high-flying agent (whether climbing a ladder, walking a tightrope, or swinging on a trapeze in one’s go-to vision) and the purpose of law as rescuing her should she fall are not value or fact neutral. Quite the contrary, they take sides on normative and empirical questions in ways that contradict leading feminist and communitarian conceptions of the nature and role of social programs, including vulnerability theory and health justice.

The metaphor surely presents problems along the lines of those surveyed here from the standpoint of other normative theories as well. For example, the safety net metaphor is in some tension even with libertarianism. This Part is meant to highlight the content of the metaphor on key questions in contemporary scholarship, not conclusively catalogue all of the ways that the metaphor is problematic across all potential normative approaches.

A. The Height-Defying Premise Assumes an Independent Subject

The vision of the height-defying agent that is the potential subject of state support in the safety net metaphor primes two problematic assumptions. First, that the subject of regulation is independent of state support unless and until she “falls.” But that is a disputed conception of the subject of regulation. While classical liberalism is built around the assumption of such a subject, the starting point for vulnerability theory is the rejection of the independent subject conception on the ground that in the reality of the human condition dependence is inevitable and vulnerability universal.

The independent subject is also inconsistent with the nature of government assistance under many health and welfare laws. For example, Medicare—the health insurance program for the old aged—does not cover long-term care. As a result, Medicaid—coverage for the low income—is the primary source of long-term care coverage for Americans, paying for 60% of nursing home stays. Participation in the long-term care aspect of Medicaid is not temporary, it is an important, often-hidden component of our health care system. To return to the inherently problematic circus metaphor, Medicaid for long-term care is more akin to the platform at the other end of the tightrope than the safety net hanging below.

A second problematic assumption primed by the vision of the high-flying subject is that the subject of regulation is autonomous, independent not only of state support but of family and community supports. Perhaps there are those for whom the safety net conjures an image of a family of trapeze artists, but the most natural assumption is that we risk heights— whether by walking tightropes, climbing ladders, or swinging through the air—alone.

Both vulnerability theory and health justice emphasize, however, the interrelatedness of health and welfare within families and communities. They see families and communities as thriving or suffering together, not in isolation. None of the usages discussed in Part II incorporate as part of the safety net the efforts of loved ones to care for their dependent, ailing, or vulnerable family members. Moreover, there is empirical support for the necessity of grouping individuals in some contexts when fashioning regulation. The participation of a supportive friend or family member can be as influential on the outcome of a person’s battle with illness as significant health markers, such as smoking. And, of course, children do not raise themselves—parents and other caregivers devote innumerable hours to childcare, often unrecognized by the state, so state supports for the child must take into account the caregiver (and vice versa).”