The Context and Process of Health Policymaking Essay

The Context and Process of Health Policymaking Essay

Before anything, I want to establish here that the government of any nation owes an obligation to the medical/healthcare of its citizens. This is one of the duties of the state, the very essence why we have a government in the first place. Once this is established, there would be no difficulty in understanding why the government is spending more money on medical care. The Context and Process of Health Policymaking Essay.

Furthermore, although it is an established fact that a change in the lifestyle of people is a better and more effective way of reducing the mortality rate of a country, I personally believe that the reason why government still spend a chunk of its resources on Medicare is because they want to reduce the reason/excuse for the death of the citizens. We must understand that America is a nation that is built on the principle of liberty and thus the government has restricted power in changing the lifestyle pattern of the people. The option left for the government therefore is limited to making sure that there is no loose end from their own part. Therefore, what is government is doing by spending a lot of money on Medicare is because they want to be justified.


Apart from this, the highest percentage of people taking Medicare in America is the elderly (NCPA, 2006). This explains why the mortality rate is not changing commensurately to the money that the government is spending on medical care. Those that consume more health care are those that would actually die sooner or later and so there seem to be no difference in the overall mortality rate of the country.

In addition to this, another thing that accounts for the high government spending on health care is the fact unlike other nations across the world, the American government does not have direct control over its spending on Healthcare. This is where the HMOs come in. The idea of patients and healthcare provider autonomy in making decisions for themselves is a welcomed idea but it is hitting deep into the nation’s expenditure. This means that even if the government does not want to spend as much, the system would make them spend more.

Reference: Retrieved on October, 20, 2008. Retrieved on  October 2008-10-20
Levit, K. (2001). Trends in state health care expenditures and funding: 1980-1998. Retrieved from  October 20, 2008.The Context and Process of Health Policymaking Essay.

Modern health policy poses complex legal, ethical, and social questions. The goal of health policy is to protect and promote the health of individuals and the community. Government officials can accomplish this objective in ways that respect human rights, including the right to self determination, privacy, and nondiscrimination. Numerous papers have addressed the question, What is sound health policy?1 However, assessments rarely address the following important questions: Which bodies are best equipped to solve which health policy problems and why? What data do policymaking bodies need? How can that data best be made available to decision makers?

The United States is a highly diverse and complicated society. Many groups “weigh in” on significant health policy issues. America’s expansive range of policymaking bodies and groups seeking to influence policy render it impossible to offer a systematic and comprehensive analysis of health policy formulation. To make an examination of policy development manageable, I will work from the following assumption, which is partly, but not wholly, valid. I will assume that formal development of health policy is the primary preserve of the three branches of government-the executive, legislature, and judiciary-at the state and federal levels. In practice, many other bodies make policy (such as professional associations or ethics groups through guidelines.)2 This essay focuses on official government policymaking that is legally binding or at least has persuasive force in law. It evaluates the relative strengths and weaknesses of each branch of government with respect to health policy formulation. It also examines sources of information and influence that help drive policymaking. These include presidential and congressional commissions, task forces and advisory bodies, professional and trade associations, and public interest, consumer, and community-based groups.

Although I argue below that health policy is best formulated through rigorous and objective assessment of data, I do not support any restriction on the right of interest groups to publish their views and to appropriately lobby policy makers. A robust constitutional society that values freedom of expression and unrestricted participation in the political process should support a role for interest groups in health policy formulation. The Context and Process of Health Policymaking Essay. It should not censor or fetter the views of those who seek to participate in the process. Yet, the various branches of government should be able to rely on full, objective information and advice based upon sound scientific evidence. This essay will explore some mechanisms for achieving these aims.

Health policy encompasses a vast range of issues in health care, public health, and biotechnology. This essay selects illustrations from several areas that, over a period of time, have generated a great deal of policy formulated by each branch of government. These include reproductive rights, the right to die, and mental health. I will also use examples in the fields of health care reform, AIDS, and civil rights of persons with disabilities.

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What factors are important in developing sound health policies? The policies themselves are rarely subjected to scientific scrutiny. Whether society seeks to reform the health care system, to restrict or to expand women’s choices to receive an abortion, or to authorize or to criminalize physician-assisted dying, it has no precise means by which to test for the “correct” approach. Health policy decisions often reflect choices between competing values, as well as assessments of available data. Interest groups, including organizations representing various health care professionals, select their values and evaluate data through their own lenses. Clearly, groups comprised of highly expert and well-intentioned professionals often make markedly different decisions about health policy.

The New York case of New York State Society of Surgeons v. Axelrod3 exemplifies the difficulty of deciding on one “correct” policy solution to complex health problems. The highest state court considered whether the state health commissioner had correctly categorized HIV infection as a communicable disease. This policy, on its face, appears noncontroversial and subject to neutral assessment. Yet, health professionals strongly split on this issue. Many public health organizations (e.g., the American Public Health Association) supported the commissioner, because the communicable disease classification under New York law adopted a voluntary approach to controlling the HIV epidemic.  The Context and Process of Health Policymaking Essay.However, many medical and surgical organizations (e.g., the American Medical Association) favored the classification of HIV infection as a sexually transmitted disease. This would authorize greater use of compulsory testing, reporting, and contact tracing. What factors should have guided the court’s decision between these two sets of respected professionals, who each used reasoned argument and data to argue that their preferred health policy was more effective?

Governmental officials need a framework for the development of sound health policy. Adopting the model I set out below does not guarantee that policies will be “effective”; but it does provide a way to filter out obvious biases and to focus attention on scientific data and reasonably objective assessments of arguments. Applying this framework allows interest groups to continue making their voices heard, while it encourages decision makers to obtain information from more neutral sources as well.

Several factors are important for developing sound health policies. First, to the extent possible, the policymaker should be objective and dispassionate. This means that decision makers should have no conflict of interest or improper financial or professional incentive. Policymakers should be able to understand the data and arguments presented, to assess them reasonably objectively, and to balance competing values fairly. In many areas of health policy, it is not necessary or even desirable for policymakers to be “experts” themselves, as long as they have access to expert advice. Second, policymaking bodies should be publicly accountable for their decisions. If science or existing societal values do not support a decision, a democratic means for altering the decision is often desirable. Democratic societies thrive on the principle that government action that affects individuals and communities is subject to public review. Periodic elections provide an opportunity for the public to demand explanations and for public officials to articulate and justify their decisions.

At least one kind of health policy is not always best made through fully accountable decision makers: the kind that fundamentally affects the human rights of individuals and minority communities. Health policies that seriously burden individual rights to liberty, privacy, and nondiscrimination may require judicial, rather than majoritarian, determinations. The Context and Process of Health Policymaking Essay. For example, a fetal protection policy that excludes all women from unsafe work places to promote the health of infants may violate fundamental rights of nondiscrimination. In Johnson Controls, the U.S. Supreme Court unanimously ruled that a fetal protection policy was discriminatory even though the company presented some scientific evidence that the fetus of a pregnant worker could be at risk.4

Third, the decision making body should be positioned to receive and to evaluate full and objective information on all aspects of a health policy. Government entities often have access to a great deal of information, but assessing the reliability of that information may be difficult. Judges receive information from legal advocates as well as ”experts” selected by each side of a case; likewise, legislators and executive officials receive information from a wide array of lobbyists and professional groups. Policymakers may recognize that information is coming from a potentially biased source, but may have difficulty weighing the relative value of the information they receive.

In addition to receiving information from the wide variety of traditional sources, policymakers need access to objective and complete information from reasonably neutral sources. This includes data and argument on the scientific, ethical, social, and legal aspects of the issue. Decision makers may seek information from one or several different objective sources in order to develop sound health policy.

Fourth, policymakers must have well-considered criteria for making the decision. Objective criteria help to guide decision makers in formulating goals, selecting means, and establishing the scientific, social, and ethical parameters for decision making. They also reduce the arbitrariness or biases that often are inherent in decision making processes. I suggest the following steps to guide policymakers:5


Examine the public health interest. Does the proposed policy seek to achieve a compelling health objective? The policymaker should clearly and narrowly define the health purpose(s) of the policy. This protects against biases in decision making, helps communities to understand the policy rationale, and facilitates public debate.


Examine the overall effectiveness of the policy. Is the proposed policy likely to be effective in achieving the stated goal(s)? This step requires an assessment of whether the policy is an appropriate intervention to achieve the stated objectives and whether it is reasonably likely to lead to effective action. The policymaker should gather scientific data and apply logic to analyze whether a policy will be effective. The Context and Process of Health Policymaking Essay.


Evaluate whether the policy is well-targeted. Is the proposed policy narrowly focused on the health problem? A decision maker should determine whether a policy is narrowly tailored to address the specific health problem, or whether it is over- or underinclusive. Overbroad policies target a population that is much larger than necessary to achieve the health objective. For example, the Bush and Clinton policy that interned or repatriated all Haitian refugees with HIV infection was overbroad, because it affected all of the group, regardless of whether individuals engaged in safe sex or other practices. It adversely affected individuals who did not pose a significant risk of transmission of HIV.6


Identify the human rights burdens. This step requires an inquiry into the nature, invasiveness, scope, and duration of human rights violations. Does the policy interfere with the right to liberty, autonomy, privacy, or nondiscrimination? For example, a policy that requires women to use contraceptives as a condition of receiving welfare benefits might interfere with the right to reproductive privacy and discriminate against women (because the policy does not apply to men) and the poor (because the policy does not affect higher-income women). It may also burden the social and economic rights of dependent children if benefits were withdrawn.


Examine whether the policy is the least restrictive alternative. A policymaker should assess whether the health objective could be achieved as well, or better, with fewer restrictions on human rights. This step helps to ensure that a policymaker considers alternatives that may better accommodate societal and individual interests.

Fifth, the policymaker should pursue a fair process to arrive at the decision. This requires a careful examination of all relevant facts and arguments. Procedures may include inquisitorial or adversarial hearings, investigations, or other rigorous methods for finding facts and examining arguments. A fair process requires that all persons or organizations that have a legitimate interest in the outcome should have a reasonable means of presenting evidence or arguments. Careful attention to decision making processes achieves both more accurate fact finding and greater equality and fairness to interested individuals and groups.

These five elements of policymaking (impartial decision making, accountability, collecting full and objective information, applying well-considered criteria, and following a rigorous and fair process) are often helpful in developing sound health policies. In the following section, I apply these criteria to decision making by each of the three branches of government and assess which bodies are most capable of resolving which health policy problems and why.The Context and Process of Health Policymaking Essay.

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The Judiciary

In theory, the judiciary provides the least ideal forum for the development of many health policies. Certainly, judges are thought to be impartial and able to assess evidence and arguments from a variety of sources objectively. However, many judges are insulated from public accountability. They are appointed by political figures, often for their political ideologies; they may have long-term or life appointments; and many are not subject to election or reappointment. Judges usually bring legal skills to the bench; they may lack experience with scientific or ethical thinking. They rarely receive education or training in health issues.7

More importantly, the adversarial nature of judicial proceedings militates against a prominent role for judges in health care policy formulation. The information that judges receive is often partial and incomplete; also, attorneys usually present narrow legal arguments that may not endorse the most desirable policy position. The legal system frequently assumes judges can produce a balanced, accurate decision after hearing two extremist versions of an issue. Yet, each version may be biased or unreliable. Courts lack the tools for assessing the validity of complex scientific or technological evidence and arguments. Courts rely on “expert” witnesses. However, expert witnesses are usually paid for their testimony; this presents a conflict of interest. Also, they may not be the most qualified in their fields, and they may offer opinions that the majority of their peers do not accept and/or that may not have been subjected to adequate scientific inquiry.

In Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court ruled for the first time on the place of scientific evidence in federal proceedings.8 The decision involved an appeal about whether the drug Bendectin caused birth defects. The Context and Process of Health Policymaking Essay. The federal district court and the court of appeals had dismissed the lawsuit, ruling that data concerning birth defects were inadmissible because they were not “generally accepted” in the scientific community.

The Supreme Court rejected the “general acceptance” standard that looked to the conclusions of the expert witness, and it took a broader view of the scientific process, with an emphasis on “methods and procedures.” The Court established judges as active gatekeepers charged with insuring that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” It asked judges to screen out ill-founded or speculative scientific theories. The Court held that judges should focus on the reasoning or methodology behind scientific testimony, rather than on whether the conclusions of an expert witness have won general acceptance in the scientific community. Speaking for the Court, Justice Blackmun said, “In order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method” and must have been tested or at least subject to testing. While publication in a peer reviewed journal was not essential, it was relevant.”9 In dissent, Chief Justice Rehnquist, joined by Justice Stevens, warned that the decision would require judges to become “amateur scientists.”

The Daubert case may well enable judges to assess expert testimony with somewhat greater reliability by reference to the scientific method. But, as Justice Blackmun stated, “There are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory.” These differences still place courts in a uniquely difficult position to assess health policy. Courts must frame their questions under the terms of a case or controversy and the applicable law. Courts do not adopt criteria to help them assess the benefits and harms of a health policy; they only resolve whether a policy is lawful. Also, courts rarely appoint neutral experts. Accordingly, even if they are able to filter out confounded scientific theories, they lack access to the objective expertise necessary for developing health policy. Courts could considerably enhance their ability to assess scientific questions if they systematically appointed neutral experts paid only by the state. Appointed experts could help the court perform a thorough, objective examination of the state of the science, which is essential for sound decision making.

Despite these numerous disadvantages courts have been instrumental in developing several important health policies. I will discuss three areas where courts have made major contributions to health policy-reproductive rights, the right to die, and mental health. The important role of the judiciary in the field of reproductive rights has been well discussed.10 Beginning with the seminal cases of Griswold v. Connecticut 11 and, later, Roe v. Wade,12 the courts for nearly two decades defended the reproductive rights of women. The Supreme Court found a constitutional right to “privacy” even though no mention of the concept appears in the Bill of Rights. The courts used the newly construed right to privacy to prevent the state from interfering with the sale and distribution of contraception.13 The Supreme Court explained that contraception concerns “the most intimate of human activities and relationships.”14

The Supreme Court stated that the constitutional promise of privacy protects not only the right to use contraception, but also the right to decide whether to carry a fetus to term.15 It defended a woman’s right to choose, and the privacy of her relationship with her physician, through the mid-1980s.16

In recent years, the changing composition of the Supreme Court has led to a significant erosion of reproductive rights and medical privacy.The Context and Process of Health Policymaking Essay.  The Court upheld the authority of the state to restrict the use of public employees and facilities for the performance of nontherapeutic abortions.17 The Court also upheld a Department of Health and Human Services regulation prohibiting federally funded family planning clinics from counseling or referring women for abortions.18 The DHHS regulation became known as the “gag rule” because it prohibited funded programs from providing women with objective clinical information about reproductive choices. In Planned Parenthood of Southeastern Pennsylvania v. Casey,19 the Supreme Court changed the legal standard by which to evaluate restrictions on abortion. This decision will have a profound effect on access to reproductive health care.20 It will allow states to place restrictions on access, such as requirements that abortions be performed in hospitals that are not publicly funded; restrictions on the timing, such as waiting periods for abortions; and mandatory justification and information requirements, such as limiting the reasons women can use for an abortion and requiring the doctor to present state-approved information.21 This shift in the composition and decision of the Supreme Court vividly shows how changeable the courts can be in assessing health policy and defending human rights.22

Many argue that the development of the right to privacy from 1965 through the early to mid-1980s had profound, positive effects on reproductive policy. Neither the legislative nor the executive branch produced similarly clear and consistent policies on contraception and abortion. Current efforts in Congress (e.g., the Freedom of Choice Act) and in state legislatures to protect reproductive privacy use the same “fundamental rights” analysis that the Supreme Court employed in Roe.23 Courts also developed thoughtful rulings on surrogate motherhood 24 and artificial reproduction that some state legislatures are emulating.25

The judiciary has also displayed leadership in formulating policy around the right to withdraw life-sustaining treatment, beginning with the Karen Ann Quinlan decision of the NewJersey Supreme Court in 1976.26 While the U.S. Supreme Court has rarely extended the right to privacy beyond reproductive decisions,27 many state courts have interpreted the federal and state constitutions as conferring a right to refuse life-sustaining medical treatment.28 The court in Bouvia held that a patient’s decision to forego medical treatment “is a moral and philosophical decision that, being a competent adult, is hers alone.”29 The right to refuse medical intervention has been extended to persons who have become incapable of making a decision30 and those who have always been incapable.31 The courts have almost uniformly respected the decisions of surrogates, particularly family members, in making choices for persons who could not decide for themselves.32

The courts have defined the circumstances under which treatment could be terminated with greater specificity over the years. Most courts have rejected the distinction between withholding and withdrawing treatment, between ordinary and extraordinary treatments, and between terminally ill and nonterminal cases. The courts have protected the right to refuse treatment in cases involving ventilators and blood transfusions, as well as those involving nutrition and hydration.33 Many courts have set out procedures and criteria for decision making ranging from second opinions, prognosis, and ethics committees34 to ombudsmen.35


Despite the courts’ own insistence that legislatures would make these decisions better, the judiciary has formulated much of the policy surrounding termination of life-sustaining treatment. Only recently has the locus of policy begun to shift to federal and state legislatures. The Supreme Court’s decision in Cruzan provided an impetus for the move to legislative policymaking on the right to die.36 In Cruzan, the U.S. Supreme Court upheld the decision of the Missouri Supreme Court to adopt a clear and convincing evidence standard for the termination of life-sustaining treatment. The Supreme Court never mentioned the word “privacy” in its decision. Instead, it found that competent patients had a “liberty interest” to refuse treatments. The Court did not view the individual’s liberty interest as “fundamental”; this suggested that the state interest in preserving life could prevail.

Legislatures began to conceive of ways in which the decisions of persons to refuse life-sustaining treatments could be more routinely respected. In her concurrence in Cruzan, Justice O’Connor gave some guidance by suggesting that the Court might in the future constitutionally protect the advance directives of patients. In 1990, Congress enacted the federal Patient Self-Determination Act, with an implementation date of December 1, 1991. The Act conditions health care providers’ receipt of Medicare or Medicaid dollars on their provision of written information at the time of admission about patients’ rights under state law to accept or refuse medical treatment and to formulate advance directives. Since Cruzan, state law on advance directives has increasingly been crafted by legislatures. The Context and Process of Health Policymaking Essay.