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Hastings Law Journal

Abstract

The passage of Medicare for All would go a long way toward curing the inequality that plagues our health care system along racial, sex, age, health status, disability, and socioeconomic lines. Yet, while laudably creating a universal right to access to health care, Medicare for All may inadvertently dampen civil rights protections that are necessary to ensure equality in health care delivery, an outcome its creators and supporters surely would not intend.

Federal money is typically requisite for civil rights enforcement. Title VI, Title IX, and the Age Discrimination Act of 1975 all apply to recipients of federal financial assistance. Under Medicare for All, the federal government becomes the payer, not recipient, of federal funds, leaving it outside civil rights enforcement unlike private insurers. Additionally, because of historic quirks in how we interpret civil rights law, Medicare for All may leave health care providers outside of nondiscrimination mandates altogether.

Medicare for All creates a vacuum in civil rights applicability—one that lawmakers will have to fill if we want nondiscrimination by doctors and health benefits administrators—but it also creates an opportunity for lawmakers to reimagine the possibilities of civil rights in health care. Lawmakers have been none too deliberate about this process in the past, with civil rights being a byproduct rather than a goal of health reform. With careful planning, Medicare for All can go beyond retaining the status quo and become a meaningful and intentional civil rights movement in health care, providing greater access to health care in our country as well as more robust civil rights protections for patients in the future.

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