¹ Although I never met Professor Bill Curran, Professors George Annas, Fran Miller, and Wendy Mariner have been inspirations to me throughout my teaching career. The health law faculty who have followed them to BU’s Law and Public Health schools are also phenomenal teachers and scholars, and I consider them valued friends.

² I still own the book assigned for that class, which cites $192.4 billion as total US health expenditures in 1978. Steven Jonas, Health Care Delivery in the United States 273 (2d ed. 1981). The book is now in its 13^th edition. See Jonas & Kovner’s Health Care Delivery in the United States (James R. Knickman & Brian Elbel eds., 13th ed. 2023).

³ See generally Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (1965); Julian E. Zelizer, The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society 163–223 (2015) (describing the actions of the Eighty-Ninth Congress during Lyndon Johnson’s “Great Society”).

⁴ See Jonas, supra note 2, at 273.

⁵ See id.

⁶ Jacqueline A. Fiore et al., National Health Expenditure Projections, 2023–32: Payer Trends Diverge as Pandemic-Related Policies Fade, 43 Health Affs. 910, 911 (2024).

⁷ Health spending in the U.S. was 8.2% of GDP in 1980 and 16.7% of GDP in 2023. The “comparable country average” was 6.6% of GDP in 1980 and 11% of GDP in 2023. Emma Wager et al., How Does Health Spending in the U.S. Compare to Other Countries?, Kff (Apr. 19, 2025), https://www.healthsystemtracker.org/chart-collection/health-spending-u-s-compare-countries/#GDP%20per%20capita%20and%20health%20consumption%20spending%20per%20capita,%20U.S.%20dollars,%202023%20(current%20prices%20and%20PPP%20adjusted)%C2%A0].

⁸ Paul Starr, The Social Transformation of American Medicine 261–67 (rev. 2d ed. 2017).

⁹ See generally Erin C. Fuse Brown & Mark A. Hall, Private Equity and the Corporatization of Health Care, 76 Stan. L. Rev. 527 (2024) (discussing corporatization and financialization, using the principal example of private equity involvement in medicine).

¹⁰ Jerome P. Kassirer, Managing Care – Should We Adopt a New Ethic?, 339 New Eng. J. Med. 397, 398 (1998).

¹¹ Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S.C.). For a contemporaneous public overview of the Clinton reform, see generally Domestic Pol’y Council, The President’s Health Security Plan: The Clinton Blueprint (1993).

¹² Matthew McGough et al., How Has U.S. Spending on Healthcare Changed Over Time?, KFF (Dec. 20, 2024), https://www.healthsystemtracker.org/chart-collection/u-s-spending-healthcare-changed-time/ [https://perma.cc/VK2P-PPVC] (showing that in 2023, national health expenditures accounted for 17.6% of the U.S. Gross Domestic Product).

¹³ See generally Guido Calabresi & Philip Bobbitt, Tragic Choices (1978) (exploring the efficacy and morality of the strategies different societies employ to allocate “tragically scarce resources”); Victor R. Fuchs, Who Shall Live?: Health, Economics, and Social Choice (1975) (analyzing the economic, social, and ethical dimensions of how health care is delivered, financed, and rationed in the United States).

¹⁴ Amartya Sen, Collective Choice and Social Welfare 21 (4th ed. 1995).

¹⁵ Id. at 22.

¹⁶ See Lawrence R. Jacobs, Politics of America’s Supply State: Health Reform and Technology, 14 Health Affs. 143, 143–45 (1995) (observing that, unlike European nations among others, U.S. politics prioritizes expanding the supply of healthcare products and services over assuring universal access to those benefits).

¹⁷ William Kissick, Medicine’s Dilemmas: Infinite Needs Versus Finite Resources 48 (1994).

¹⁸ Comm. on the Learning Health Care Sys. in Am., Inst. of Med., Best Care at Lower Cost: The Path to Continuously Learning Health Care in America 102 (Mark Smith et al. eds., 2012); see also Comm. on Quality of Health Care in Am., Inst. of Med., Crossing the Quality chasm: A New Health System for the 21st Century 23–25 (2001) (concluding that healthcare fails to be safe, effective, patient-centered, timely, efficient, or equitable) [hereinafter The Quality Chasm Report]; Comm. on Quality of Health Care in Am., Inst. of Med., To Err Is Human: Building a Safer Health System 1 (Linda T. Kohn et al. eds., 2000) (estimating as many as 98,000 annual deaths due to medical error in the United States).

¹⁹ Donald M. Berwick, Thomas W. Nolan & John Whittington, The Triple Aim: Care, Health, And Cost, 27 Health Affs. 759, 760 (2008); Improvement Area: Triple Aim and Population Health, Inst. for Healthcare Improvement, https://www.ihi.org/improvement-areas/improvement-area-triple-aim-and-population-health [https://perma.cc/V4F2-EC4Q] (last visited Aug. 27, 2024).

²⁰ Steven B. Spivack, Genevra F. Murray & Valerie A. Lewis, A Decade of ACOs in Medicare: Have They Delivered on Their Promise?, 48 J. Health Pol. Pol’y & L. 63–64, 74 (2023).

²¹ See id. at 66–67; Judith Ortiz et al., Primary Care Clinics and Accountable Care Organizations, 2 Health Servs. Rsch. & Managerial Epidemiology art. no. 2333392815613056, at 1 (2015).

²² See Spivack, Murray & Lewis, supra note 20, at 69.

²³ For the manifestations of this dynamic in health law, see William M. Sage, Relational Duties, Regulatory Duties, and the Widening Gap Between Individual Health Law and Collective Health Policy, 96 Geo. L.J. 497 (2008).

²⁴ McGough et al., supra note 12.

²⁵ Indeed, President Obama rhetorically equated “consumers” with “the American people” in celebrating a Supreme Court ruling upholding a cornerstone of the ACA’s insurance expansion. See Remarks on the United States Supreme Court Ruling on the Patient Protection and Affordable Care Act, 1 Pub. Papers 743, 744 (June 25, 2015) (“This reform remains what it’s always been: a set of fairer rules and tougher protections that have made health care in America more affordable, more attainable, and more about you, the consumer, the American people.”); King v. Burwell, 576 U.S. 473 (2015). Regarding the ACA’s overall inattention to solidarity, see William M. Sage, Solidarity: Unfashionable, but Still American, in Connecting American Values with American Health Care Reform 10, 10–11 (Thomas H. Murray & Mary Crowley eds., 2009); William M. Sage, Why the Affordable Care Act Needs a Better Name: “Americare,” 29 Health Affs. 1496, 1496–97 (2010).

²⁶ See William M. Sage, Putting Insurance Reform in the ACA’s Rear-View Mirror, 51 Hous. L. Rev. 1082 (2014).

²⁷ See infra notes 84–85 and accompanying text.

²⁸ See United States Inflation Rate, Trading Econ., https://tradingeconomics.com/united-states/inflation-cpi& (last visited Apr. 3, 2025) (showing that in Feb. 2020, the unemployment rate was 3.5% and the core inflation rate was 2.4%).

²⁹ See Joseph Burns, How Providers Avoid Complying with the No Surprises Act, Ass’n of Health Care Journalists (July 16, 2024), http://healthjournalism.org/blog/2024/07/how-providers-avoid-complying-with-the-no-surprises-act/ [https://perma.cc/C6NH-UJY9].

³⁰ Paul Krugman, Opinion, This Can’t Go On, N.Y. Times (Nov. 4, 2003), https://www.nytimes.com/2003/11/04/opinion/this-can-t-go-on.html [https://perma.cc/8HBY-TJY4].

³¹ I worked in the White House for approximately six months, ultimately being put in charge of five of the roughly twenty-five groups of government employees assigned to develop detailed policy recommendations for Congress. The experience was personally transformative, though not without unusual moments such as the evening when I had failed to comply with the formatting requirements for faxing a short list of people requiring clearance to the building the following day, and received a phone call from an officer of the United States Secret Service pointing out my error and offering to “fax [the list] back” to me so that I could correct it.

³² See Starr, supra note 8, at 92.

³³ See Miriam J. Laugesen, Fixing Medical Prices: How Physicians Are Paid 3–5, 23–46 (2016).

³⁴ See S. Ryan Greysen, Candice Chen & Fitzhugh Mullan, A History of Medical Student Debt: Observations and Implications for the Future of Medical Education, 86 Acad. Med. 840, 840 (2011) (describing the shift in student financing of medical education and graduation debt that occurred around the 1980s).

³⁵ George J. Church, Backlash Against HMOs: Doctors, Patients, Unions, Legislators Are Fed Up and Say They Won’t Take It Anymore, CNN: All Pol. (Apr. 14, 1997), https://www.cnn.com/ALLPOLITICS/1997/04/07/time/hmo.html [https://perma.cc/KKR9-LERQ].

³⁶ See Paul Starr & Walter A. Zelman, A Bridge to Compromise: Competition Under a Budget, 12 Health Affs. 7 (Supp. 1993). Because of the political debacle that had caused the repeal before implementation of the aptly named Medicare Catastrophic Coverage Act in the late 1980s, Medicare was not expressly reconceived in the Clinton plan, but Medicaid was folded in and the potential implications of global budgeting were clear. Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-360, 102 Stat. 683 (1988).

³⁷ See Elizabeth McCaughey, No Exit: What the Clinton Plan Will Do for You, New Republic (Feb. 7, 1994), https://newrepublic.com/article/69935/no-exit [https://perma.cc/V5WE-4WDQ] (equating the Clinton reform with private managed care as rationing care).

³⁸ See generally Richard Rettig, Origins of the Medicare Kidney Disease Entitlement: The Societal Security Amendments of 1972, in Inst. of Med., Biomedical Politics 176 (Kathi E. Hanna ed., 1991).

³⁹ See Joseph A. Califano, Jr., America’s Health Care Revolution: Who Lives? Who Dies? Who Pays? 49 (1986).

⁴⁰ See id. at 50–51.

⁴¹ Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297, 297–98 (codified as amended in scattered sections of 2 and 31 U.S.C.).

⁴² See Timothy Westmoreland, Invisible Forces at Work: Health Legislation and the Budget Process, in The Oxford Handbook of U.S. Healthcare Law 873, 875 (I. Glenn Cohen et al. eds., 2016).

⁴³ See William M. Sage & Timothy M. Westmoreland, Following the Money: The ACA’s Fiscal-Political Economy and Lessons for Future Health Care Reform, 48 J.L. Med. & Ethics 434, 437–38 (2020).

⁴⁴ See Health Care Reform (Part 10): Joint Hearing Before the Subcomm. on Health & the Env’t & the Subcomm. on Com., Consumer Prot., & Competitiveness of the Comm. on Energy & Com., 103d Cong. 10–14 (Feb. 10, 1994) [hereinafter Joint Hearing] (statement of Robert D. Reischauer, Director, Congressional Budget Office).

⁴⁵ See, e.g., Norman Daniels & James E. Sabin, Setting Limits Fairly: Can We Learn to Share Medical Resources?, at ix (2002) (Dr. Daniels served on the Clinton ethics advisory group). The Clinton administration was also reconsidering the denial of a Medicaid waiver to the Oregon Health Plan, which had attempted to apply a cost-effectiveness metric to health coverage. See Jonathan Oberlander et al., Rationing Medical Care: Rhetoric and Reality in the Oregon Health Plan, 164 Can. Med. Ass’n J. 1583, 1585 (2001).

⁴⁶ Bill Schneider, Health Care Returns as an Issue, CNN (Oct. 4, 1999, 6:22 PM), https://www.cnn.com/ALLPOLITICS/stories/1999/10/04/schneider.healthcare/? [https://perma.cc/BD8W-FVGG].

⁴⁷ Theda Skocpol, The Time is Never Ripe: The Repeated Defeat of Universal Health Insurance in the 20^th Century United States 9–10 (Econ. & Soc. Rsch. Inst., Geary Lecture No. 26, 1995).

⁴⁸ See Alain C. Enthoven, The History and Principles of Managed Competition, 12 Health Affs. 24, 24, 46 (1993). For a history of Kaiser, see Rickey Hendricks, A Model for National Health Care: The History of Kaiser Permanente (1993).

⁴⁹ See, e.g., Richard A. Culbertson & Philip R. Lee, Medicare and Physician Autonomy, Health Care Fin. Rev., Winter 1996, at 115, 116–19; Christopher Cai, How Would Medicare for All Affect Physician Revenue?, 37 J. Gen. Internal Med. 671, 671 (2021) (noting widespread opposition of US physicians to single-payer based on concerns about loss of income); see also Beatrix Hoffman, Health Care Reform and Social Movements in the United States, 93 Am. J. Pub. Health 75, 76 (2003) (noting practitioners’ fears in the early 20th century that “compulsory insurance would erode their incomes and independence”).

⁵⁰ See Robert Pear, Clinton’s Health Plan: The Overview; Congress Is Given Clinton Proposal for Health Care, N.Y. Times (Oct. 28, 1993), https://www.nytimes.com/1993/10/28/us/clinton-s-health-plan-overview-congress-given-clinton-proposal-for-health-care.html.

⁵¹ See William M. Sage, Adding Principle to Pragmatism: The Transformative Potential of “Medicare-for-All” in Post-Pandemic Health Reform, 20 Yale J. Health Pol’y L. & Ethics 68, 86–87 (2021).

⁵² Cong. Budget Off., An Analysis of the Administration’s Health Proposal 44 (1994) (classifying Health Alliances as on-budget). See also Joint Hearing, supra note 44 (CBO Director’s congressional testimony concluding that mandatory payments to health alliances represented an exercise of sovereign authority).

⁵³ See Robert J. Blendon et al., Understanding the Managed Care Backlash, 17 Health Affs. 80, 80 (1998).

⁵⁴ Theda Skocpol, The Rise and Resounding Demise of the Clinton Plan, 14 Health Affs. 66, 67 (1995).

⁵⁵ See Joseph White, Markets and Medical Care: The United States, 1993-2005, 85 Milbank Q. 395, 403, 405, 429 (2007).

⁵⁶ See id. at 413.

⁵⁷ See Cory Capps et al., The Continuing Saga of Hospital Merger Enforcement, 82 Antitrust L.J. 441, 443 (2019).

⁵⁸ See generally Michelle M. Megellas, Medicare Modernization: The New Prescription Drug Benefit and Redesigned Part B And Part C, 19 Baylor U. Med. Ctr. Proc. 22 (2006) (discussing the establishment of Medicare Part D, which went into effect January 1, 2006, by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003).

⁵⁹ Nat’l Ass’n of Cmty. Health Ctrs., Community Health Centers Past, Present and Future: Building on 50 Years of Success 2–3 (2015) (discussing history of bipartisan federal support for Community Health Centers, including George W. Bush’s Health Care Expansion Initiative).

⁶⁰ Matthew McGough et al., How has U.S. spending on healthcare changed over time?, Peterson-KFF Health Sys. Tracker, (Dec. 20, 2024) https://www.healthsystemtracker.org/chart-collection/u-s-spending-healthcare-changed-time [https://perma.cc/ZLG5-3RFM].

⁶¹ Lizzy Berryman, Fixing the Health Care System Tops President’s Agenda, PBS (June 26, 2009, 9:25 PM), https://www.pbs.org/newshour/classroom/posts/2009/06/fixing-the-health-care-system-tops-presidents-agenda [https://perma.cc/7MB8-CCJQ].

⁶² See supra note 18 and accompanying text.

⁶³ See Rachel Rebouche & Scott Burris, The Social Determinants of Health, in Oxford Handbook of U.S. Health Law 1102-09 (I. Glenn Cohen et. al. eds., 2016); Laura McGovern et. al., Heatlh Affs., Health Pol’y Brief No. 2014.17, The Relative Contribution of Multiple Determinants to Health Outcomes 2–6 (2014), https://www.healthaffairs.org/do/10.1377/hpb20140821.404487/full/healthpolicybrief_123.pdf [https://perma.cc/7AJJ-M66Z].

⁶⁴ See, e.g., Hannah L. Crook et al., A Decade of Value-Based Payment: Lessons Learned And Implications For The Center For Medicare And Medicaid Innovation, Part 1, Health Affs., (June 9, 2021) (https://www.healthaffairs.org/do/10.1377/forefront.20210607.656313/; see also Hannah L. Crook et al., A Decade of Value-Based Payment: Lessons Learned And Implications For The Center For Medicare And Medicaid Innovation, Part 2, Health Affs., (June 10, 2021) https://www.healthaffairs.org/content/forefront/decade-value-based-payment-lessons-learned-and-implications-center-medicare-and (payment reform); Institute of Medicine, The Future of Nursing: Leading Change, Advancing Health. Washington, DC: The National Academies Press (2011) (professional scope of practice expansion).

⁶⁵ See Sage, supra note 25, at 1084–87; Sage, supra note 51, at 69–120.

⁶⁶ Id. at 84–85.

⁶⁷ See Sage & Westmoreland, supra note 43, at 437–39.

⁶⁸ See Abbe R. Gluck, Mark Regan & Erica Turret, The Affordable Care Act’s Litigation Decade, 108 Geo. L.J. 1471, 1477–91, 1500–09 (2020) (analyzing the “existential challenges” to the ACA, including to the individual mandate and Medicare expansion, and the waves of litigation focusing on the provisions of the ACA that broaden protections for civil rights and preventive services); see generally id. (surveying the thousands of federal and state court challenges to the ACA).

⁶⁹ California v. Texas, 593 U.S. 659 (2021); Zubik v. Burwell, 578 U.S. 403 (2016); King v. Burwell, 576 U.S. 473 (2015); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

⁷⁰ See, Peter Ubel, Why It Is So Difficult to Kill the Death Panel Myth, Forbes (Jan. 19, 2013, 12PM), https://www.forbes.com/sites/peterubel/2013/01/09/why-it-is-so-difficult-to-kill-the-death-panel-myth/ [https://perma.cc/3BZJ-2J6K].

⁷¹ See, e.g., Quint Forgey, ‘It Affects Virtually Nobody’: Trump Downplays Virus Threat to Young People, Politico (Sept. 22, 2020, 9:27 AM), https://www.politico.com/news/2020/09/22/trump-downplays-coronavirus-threat-young-people-419883; Bess Levin, Texas Lt. Governor: Old People Should Volunteer to Die to Save the Economy, Vanity Fair (Mar. 24, 2020), https://www.vanityfair.com/news/2020/03/dan-patrick-coronavirus-grandparents.

⁷² ACA opponents loudly and repeatedly accused the Obama administration of wanting to make life-or-death decisions by fiat. See Elizabeth Weeks Leonard, Death Panels and the Rhetoric of Rationing, 13 Nev. L.J. 872, 878–86 (2013).

⁷³ See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 6301(c), 124 Stat. 119, 740 (2010) (codified at 42 U.S.C. § 1320e–1) (“Limitations on Certain Uses of Comparative Clinical Effectiveness Research”).

⁷⁴ See Bipartisan Budget Act of 2018, Pub. L. No. 115-123, § 52001, 132 Stat. 64, 298 (repealing 42 U.S.C. § 1395kkk (establishing a fifteen-member Independent Payment Advisory Board for the purpose of reducing the per capita rate of growth in Medicare spending)); Ian D. Spatz, IPAB RIP, Health Affs. Forefront (Feb. 22, 2018), https://www.healthaffairs.org/content/forefront/ipab-rip (describing the Advisory Board’s “failure to launch” due to never having any members recommended or appointed).

⁷⁵ See Jonathan Oberlander, Implementing the Affordable Care Act: The Promise and Limits of Health Care Reform, 41 J. Health Pol. Pol’y & L. 803, 807–11 (2016).

⁷⁶ See Historic 21.3 Million People Choose ACA Marketplace Coverage, Ctrs. for Medicare & Medicaid Servs. Newsroom (Jan. 17, 2025), https://www.cms.gov/newsroom/press-releases/historic-213-million-people-choose-aca-marketplace-coverage (reporting that 21.3 million people selected an Affordable Care Act Health Insurance Marketplace plan during the 2024 Open Enrollment Period); Preeti Vankar, Number of People Without Health Insurance in the United States from 1997 to 2023, Statista (July 10, 2024), https://www.statista.com/statistics/200955/americans-without-health-insurance/ (showing that the number of people in the United States without health insurance has dropped from 48.6 million in 2010 to 25 million in 2023).

⁷⁷ See Eric C. Schneider et al., Mirror, Mirror 2017: International Comparison Reflects Flaws and Opportunities for Better U.S. Health Care 4 (2017), http://www.commonwealthfund.org/~/media/files/publications/fund-report/2017/jul/schneider_mirror_mirrEcor_2017.pdf [https://perma.cc/S99E-KQNJ] (explaining why the United States health care system “falls short” through a comparative analysis of the health care system performance of 10 other high-income countries); see also The Quality Chasm Report, supra note 18, at 23–25 (explaining the reasons underlying the current health care system’s failure to meet patient needs and establishing the framework for a new health care system).

⁷⁸ Economists disagree on the system’s degree of “productive inefficiency.” See Sherry Glied & Adam Sacarny, Is the U.S. Healthcare System Wasteful and Inefficient? A Review of the Evidence, 43 J. Health Pol. Pol’y & L. 739, 741–45 (2018).

⁷⁹ See, e.g., Donald Cohen & Allen Mikaelian, The Privatization of Everything How the Plunder of Public Goods Transformed America and How We Can Fight Back 167–74 (2023) (discussing the privatization of Medicaid); Stephanie Woolhandler et al., Public Money, Private Control: A Case Study of Hospital Financing in Oakland and Berkeley, California, 73 Am. J. Pub. Health 584 (1983).

⁸⁰ See, e.g., Steffie Woolhandler & David U. Himmelstein, Paying for National Health Insurance—And Not Getting It, Health Affs., July/Aug. 2002, at 88, 89 exhibit 1 (showing the flow of health care financing funds among individuals/employers, providers, government, and private insurers).

⁸¹ See, e.g., Matthew B. Lawrence, Operationalizing Power in Health Law: The Hospital Abolition Hypothesis, 52 J.L. Med. & Ethics 364, 371 (2024) (discussing the “off-loading [by the medical profession] of many non-clinical responsibilities to hospitals — billing, electronic health records, treatment of staff, overall care management, patient intake, etc.”).

⁸² See Sarah Kliff, Hospitals Knew How to Make Money. Then Coronavirus Happened., N.Y. Times (May 20, 2020), https://www.nytimes.com/2020/05/15/us/hospitals-revenue-coronavirus.html [https://perma.cc/CD5F-93Z3]. COVID-19 shifted care away from private reimbursement in the short term and probably in the long term as well. Id.; see also Glenn Melnick & Susan Maerki, The Financial Impact of COVID-19 on California Hospitals: January 2020 Through June 2021, at 12 (2021), https://www.chcf.org/wp-content/uploads/2021/08/FinancialImpactCOVID19CAHospitalsJan2020June2021.pdf [https://perma.cc/L82J-JCVH].

⁸³ See, e.g., Allison K. Hoffman, Health Care’s Market Bureaucracy, 66 UCLA L. Rev. 1926 (2019) (arguing that leading market-based policies are inefficient and have created a massive “market bureaucracy” that has failed to enhance consumer choice as promised or deliver effective health care).

⁸⁴ See generally F.A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519, 526–28 (1945) (describing the “marvel” of price signals in competitive markets).

⁸⁵ See D. Andrew Austin & Jane G. Gravelle, Cong. Rsch. Serv., RL34101, Does Price Transparency Improve Market Efficiency? Implications of Empirical Evidence in Other Markets for the Health Sector 8–9 (2008), https://www.congress.gov/crs-product/RL34101 [https://perma.cc/Y4E5-QH7F].

⁸⁶ See William M. Sage, Assembled Products: The Key to More Effective Competition and Antitrust Oversight in Health Care, 101 Cornell L. Rev. 609, 613–14 (2016).

⁸⁷ “From volume to value” became a catchphrase around 2015 among market-based health policymakers. See, e.g., Michael E. Porter & Thomas H. Lee, From Volume to Value in Health Care: The Work Begins, 316 J. Am. Med. Ass’n 1047, 1047 (2016). The problem is that increased volume with lower per-unit costs is desirable for many things, such as necessary surgery or effective preventive testing, but not for others, such as unnecessary imaging. See also Michael E. Porter & Thomas H. Lee, The Strategy That Will Fix Health Care, Harv. Bus. Rev., Oct. 2013, at 50.

⁸⁸ See, e.g., The Home Care Evolution: What a Long, Strange Trip It’s Been, HomeCare Mag., Jan. 2003, at 20, 23–24 (chronicling the many mergers in the 1980s, the “golden age” of home medical equipment); Eliot Z. Fishman, Joan D. Penrod & Bruce C. Vladeck, Medicare Home Health Utilization in Context, 38 Health Servs. Rsch. 107 (2003).

⁸⁹ See, e.g., Martin Gaynor & Deborah Haas-Wilson, Change, Consolidation, and Competition in Health Care Markets, J. Econ. Persps., Winter 1999, at 141, 141–44 (discussing the impacts on the health care industry in the 1990s of the rise of managed care, horizontal consolidation within markets for insurance, hospital services, and physician services, and vertical integrations in health care markets); David Dranove, Carol J. Simon & William D. White, Is Managed Care Leading to Consolidation in Health-Care Markets?, 37 Health Servs. Rsch. 573, 573–75 (2002) (discussing consolidation trends during the 1980s and 1990s and finding that managed care is “associated with a substantial increase in concentration in hospital markets and a sharp decline in the number of solo physician practices”).

⁹⁰ See Sage, supra note 86, at 641–49.

⁹¹ See William B. Vogt & Robert Town, Robert Wood Johnson Found., How Has Hospital Consolidation Affected the Price and Quality of Hospital Care? 11–12 (2006); Martin Gaynor & Robert Town, The Impact of Hospital Consolidation—Update 2 (2012).

⁹² See Thomas L. Greaney, Coping with Concentration, 36 Health Affs. 1564, 1565 (2017) (“Antitrust law has an important, constrained, role to play but is especially inept in dealing with extant market power.”).

⁹³ See Einer Elhauge, Why We Should Care About Health Care Fragmentation and How to Fix It, in The Fragmentation of U.S. Health Care: Causes and Solutions 1–20 (Einer Elhauge ed., 2010).

⁹⁴ See Peter J. Hammer & William M. Sage, Critical Issues in Hospital Antitrust Law, 22 Health Affs. 88 (2003) (attributing greater anticompetitive effect to regulation than to pure market conduct); see also Robert I. Field, Mother Of Invention: How the Government Created “Free-Market” Health Care 24 (2014) (centrality of public initiatives setting conditions for private health care).

⁹⁵ This was first reported in 2019. Carol K. Kane, Am. Med. Ass’n, Updated Data on Physician Practice Arrangements: For the First Time, Fewer Physicians Are Owners than Employees 7, 13–16 (2019), https://www.ama-assn.org/system/files/2019-07/prp-fewer-owners-benchmark-survey-2018.pdf [https://perma.cc/7HX9-JW8H].

⁹⁶ See, e.g., Patricia C. Gabow & Matthew K. Wynia, Oaths, Conscience, Contracts, and Laws—The Gathering Storm Confronting Medical Professionalism, 332 J. Am. Med. Ass’n 614 (2024) (expressing concern over provider contracts but ignoring employer responsibilities).

⁹⁷ Sage, supra note 86, at 625.

⁹⁸ Sylvia Allegretto & Dave Graham-Squire, Monopsony in Professional Labor Markets: Hospital System Concentration and Nurse Wages (Inst. for New Econ. Thinking, Working Paper No. 196, 2023), https://ssrn.com/abstract=4336504 [https://perma.cc/V4JQ-LH35].

⁹⁹ See, e.g., Iris Hentze, COVID-19: Occupational Licensing During Public Emergencies, Nat’l Conf. of State Legislatures, https://www.ncsl.org/labor-and-employment/covid-19-occupational-licensing-during-public-emergencies (Oct. 30, 2020) (detailing state occupational health licensing regulatory responses to the COVID-19 pandemic); Donnie L. Bell & Mitchell H. Katz, Modernize Medical Licensing, and Credentialing, Too— Lessons from the COVID-19 Pandemic, 181 J. Am. Med. Ass’n Internal Med. 312 (2021) (discussing how NYC Health + Hospitals “was able to staff up to meet urgent needs during the pandemic” by waiving credentialing and state licensure requirements); Lusine Poghosyan et al., State Responses to COVID-19: Potential Benefits of Continuing Full Practice Authority for Primary Care Nurse Practitioners, 70 Nursing Outlook 28 (2021) (detailing federal and state deregulation of scope of practice restrictions on nurse practitioners during the COVID-19 pandemic).

¹⁰⁰ See, e.g., Milton Friedman, Capitalism and Freedom 149–59 (1962); Off. of Econ. Pol’y, U.S. Dep’t of the Treas. et al., Occupational Licensing: A Framework for Policymakers 13–14 (2015), https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf [https://perma.cc/PB6T-Q6SB] (Obama Administration report); U.S. Dep’t. of Health & Hum. Servs. et al., Reforming America’s Healthcare System Through Choice and Competition 32 (2018), https://www.hhs.gov/sites/default/files/Reforming-Americas-Healthcare-System-Through-Choice-and-Competition.pdf [https://perma.cc/N4BR-LXQT] (Trump Administration report).

¹⁰¹ See sources cited supra note 97.

¹⁰² See AMA Successfully Fights Scope of Practice Extensions that Threaten Patient Safety, Am. Med. Ass’n (May 15, 2023), https://www.ama-assn.org/practice-management/scope-practice/ama-successfully-fights-scope-practice-expansions-threaten [https://perma.cc/H6QG-5P52].

¹⁰³ See Inflation Reduction Act of 2022, Pub. L. No. 117-169, sec. 11406, § 1860D-2(b)(9), 136 Stat. 1818, 1902–03 (codified as amended at 42 U.S.C. § 1395w–10(b)(9)) (limiting out-of-pocket costs for covered insulin products under Medicare Part D to $35 per month); id. sec. 11407(b)(2), § 1833(a), 136 Stat. at 1904–05 (codified as amended at 42 U.S.C. § 1395l(a)) (same for covered insulin products under Medicare Part B).

¹⁰⁴ See id. § 11001, 136 Stat. at 1833 (codified as amended at 42 U.S.C. §§ 1320f to 1320f-7) (establishing the “Price Negotiation Program to Lower Prices for Certain High-Priced Single Source Drugs”); see also Juliette Cubanski, FAQs about the Inflation Reduction Act’s Medicare Drug Price Negotiation Program, KFF (Jan. 23, 2025), https://www.kff.org/medicare/issue-brief/faqs-about-the-inflation-reduction-acts-medicare-drug-price-negotiation-program/ [https://perma.cc/P9XK-WYY3] (providing details about the fifteen drugs currently selected for the Medicare Price Negotiation Program).

¹⁰⁵ For a realistic assessment, see Nat’l Acads. of Scis., Eng’g & Med., Making Medicines Affordable: A National Imperative 11–17 (2018).

¹⁰⁶ See Aylin Sertkaya et al., Costs of Drug Development and Research and Development Intensity in the US, 2000-2018, 7 J. Am. Med. Ass’n Network Open art. no. e2415445 (2024) (estimating the mean cost of developing a new drug as $172.7 million exclusive of cost of failures, and $515.8 million inclusive thereof); Andrew M. Hill et al., Estimated Costs of Production and Potential Prices for the WHO Essential Medicines List, 3 Brit. Med. J. Glob. Health art. no. e571, at 2 (2018) (estimating a conversion cost from raw active pharmaceutical ingredients to finished pharmaceutical product of one cent).

¹⁰⁷ See, e.g., Kevin B. O’Reilly, As COVID-19 Peaked, Prior Authorization’s Harmful Burdens Continued, Am. Med. Ass’n (Apr. 13, 2021), https://www.ama-assn.org/practice-management/prior-authorization/covid-19-peaked-prior-authorization-s-harmful-burdens [https://perma.cc/SDS4-FKJ4].

¹⁰⁸ See, e.g., Eric Crosbie et al., State Preemption: An Emerging Threat to Local Sugar-Sweetened Beverage Taxation, 111 Am. J. Pub. Health 677, 677–79 (2021); James G. Hodge et al., Public Health ‘Preemption Plus,’ 45 J.L. Med. & Ethics 156, 156 (2017).

¹⁰⁹ See, e.g., Lewis A. Grossman, Choose Your Medicine: Freedom of Therapeutic Choice in America 5–6 (2021) (discussing the historical popular distrust of state “medical practice acts,” which “threatened the very existence of the unorthodox medical sects that millions of Americans adhered to before the rise of modern scientific medicine,” and observing that “the medical freedom rhetoric of alternative medicine movements has always included a strain of thoroughgoing hostility to scientists, experts, bureaucrats, elites, and big business—a hostility sometimes fading over into paranoid conspiracy mongering”); Richard Hofstadter, The Paranoid Style in American Politics, Harper’s Mag., Nov. 1964, at 77, https://harpers.org/archive/1964/11/the-paranoid-style-in-american-politics [https://perma.cc/8YGK-6KW5].

¹¹⁰ See Nathan Cortez & William M. Sage, The Disembodied First Amendment, 100 Wash. U. L. Rev. 707, 707–10 (2022).

¹¹¹ See generally Dayna Bowen Matthew, Just Medicine: A Cure for Racial Inequality in American Healthcare (2015) (examining race-based health disparities); Marshall H. Chin et al., Interventions to Reduce Racial and Ethnic Disparities in Health Care, in Race, Ethnicity, And Health 761 (Thomas A. LaVeist & Lydia A. Isaac eds., 2nd ed. 2012); David Barton Smith, Health Care Divided: Race And Healing A Nation (1999) (chronicling racial discrimination and segregation in the United States health care and tracing the role that race has played in shaping it); Elizabeth Tobin-Tyler & Joel B. Teitelbaum, Essentials of Health Justice: A Primer (2019) (defining and exploring health justice).

¹¹² See William M. Sage & Keegan D. Warren, Why MLP Legal Care Should Be Financed as Health Care, 26 Am. Med. Ass’n J. Ethics 640, 641 (2024) (reviewing funding models for medical-legal partnerships).

¹¹³ Compare Craig Konnoth, Medicalization and the New Civil Rights, 72 Stan. L. Rev. 1165 (2020) (defending medical civil rights-seeking), with Allison K. Hoffman, How Medicalization of Civil Rights Could Disappoint, 72 Stan. L. Rev. 165 (2020) (expressing concern about the longer-term consequences of medicalization of civil rights).

¹¹⁴ See William M. Sage & Jennifer E. Laurin, If You Would Not Criminalize Poverty, Do Not Medicalize It, 46 J.L. Med. & Ethics 573, 578 (2018) (noting dependency in both hospitals and prisons).

¹¹⁵ Poverty is a major correlate of poor health and increased mortality. See generally Elizabeth H. Bradley & Lauren A. Taylor, The American Health Paradox: Why Spending More Is Getting Less 8–9 (2015) (discussing excessive investment in medical versus social care); Richard Cooper, Poverty And the Myths of Health Care Reform 9–10 (2016) (arguing that poverty, not clinical uncertainty, explains geographic variation in health care spending); Raj Chetty et al., The Association Between Income and Life Expectancy in the United States, 2001-2014, 315 J. Am. Med. Ass’n 1750, 1750–66 (2016) (mapping the socioeconomics of longevity).

¹¹⁶ See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012); see also Sage & Westmoreland, supra note 43, at 438–39.

¹¹⁷ See Madeline Guth & MaryBeth Musumeci, An Overview of Medicaid Work Requirements: What Happened Under the Trump and Biden Administrations?, KFF (May 3, 2022), https://www.kff.org/medicaid/issue-brief/an-overview-of-medicaid-work-requirements-what-happened-under-the-trump-and-biden-administrations/ [https://perma.cc/5Q2T-VE2L].

¹¹⁸ See Lonnie Snowden & Genevieve Graaf, The “Undeserving Poor,” Racial Bias, and Medicaid Coverage of African Americans, 45 J. Black Psych. 130, 130–31 (2019).

¹¹⁹ Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, sec. 1513, § 4980H, 124 Stat. 119, 253–54 (2010) (codified as amended at 26 U.S.C. § 4980H) (establishing fines for large employers that fail to offer employees opportunities to enroll in minimum essential coverage under eligible employer-sponsored plans, which by definition must be group health plans or group health insurance coverage); id. sec. 1001, § 2713(a)(4), 124 Stat. at 131 (codified as amended at 42 U.S.C. § 300gg-13(a)(4)) (requiring group health plans and health insurance issuers to provide preventive care coverage for women that complies with comprehensive guidelines supported by HRSA); Women’s Preventive Services Guidelines, Health Res. & Servs. Admin., https://www.hrsa.gov/womens-guidelines [https://perma.cc/F4XF-L5MG] (describing the Women’s Preventive Services guidelines supported by HRSA, which recommend full coverage for FDA-approved contraceptives, based on the 2011 recommendations by Comm. on Preventives Servs. for Women, Inst. of Med., Clinical Preventive Services for Women Closing the Gaps (2011)).

¹²⁰ See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657 (2020); Zubik v. Burwell, 578 U. S. 403 (2016) (per curiam); Hobby Lobby Stores, Inc. v. Burwell, 573 U.S. 682 (2014).

¹²¹ See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

¹²² See Moyle v. United States, 603 U.S. 324 (2024).

¹²³ See, e.g., AJ Eckert, Irreversible Damage to the Trans Community: A Critical Review of Abigail Shrier’s Irreversible Damage: The Transgender Craze Seducing Our Daughters (Part Two), Sci.-Based Med. (July 18, 2021), https://sciencebasedmedicine.org/irreversible-damage-to-the-trans-community-a-critical-review-of-abigail-shriers-book-irreversible-damage-the-transgender-craze-seducing-our-daughters-part-two/ (describing conservative author Abigail Shrier’s beliefs that gender-affirming-care permissive policies lead to indoctrination in liberal gender ideology and work to alienate children from traditional notions of womanhood); Sarah Parshall Perry & Thomas Jipping, Heritage Found., Legal Memorandum No. 355, Public School Gender Policies That Exclude Parents Are Unconstitutional 3 (2024) (arguing that school gender policies have “broken the bonds of trust between parent and child, relegating parents to uninformed bystanders in the development of their children’s very identities”).

¹²⁴ ACA § 4002, 124 Stat. at 541 (codified as amended at 42 U.S.C. § 300u-11). For comparison, mandatory federal spending on Medicare and Medicaid is about $1.41 trillion ($839 billion on Medicare and $567 billion on Medicaid). See Juliette Cubanski, Alice Burns & Cynthia Cox, What Does the Federal Government Spend on Health Care?, KFF (Feb. 24, 2025), https://www.kff.org/medicaid/issue-brief/what-does-the-federal-government-spend-on-health-care [https://perma.cc/TC5U-L9SZ].

¹²⁵ Compare Richard A. Epstein, Let the Shoemaker Stick to His Last: A Defense of the “Old” Public Health, 46 Persps. Biology & Med. S138, S139 (Supp. 2003), with Lawrence O. Gostin & M. Gregg Bloche, The Politics of Public Health: A Response to Epstein, 46 Persps. Biology & Med. S160, S160 (Supp. 2003).

¹²⁶ See, e.g., Lawrence O. Gostin, Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Am. J. Pub. Health 576 (2005).

¹²⁷ See Madeline Brown et al., Nine Charts About Wealth Inequality in America, Urb. Inst. (Apr. 25, 2024), https://apps.urban.org/features/wealth-inequality-charts/; John Hisnanick, Income Inequality and the Appalachian Region Before, During and After the Great Recession 9–10, 18–19 (2014) (discussing industry and income inequality in Appalachia).

¹²⁸ See generally Anne Case & Angus Deaton, Deaths of Despair and the Future of Capitalism (2020) (popularizing the term “deaths of despair” to refer to death from drug overdose, alcoholic liver disease and cirrhosis, or suicide, and explaining the surge in these deaths among working-class Americans); Gonzalo Martinez-Ales et al., Why Are Suicide Rates Increasing in the United States? Towards a Multilevel Reimagination of Suicide Prevention, 46 Current Topics Behav. Neurosci. 1, 4, 12 (2020) (discussing the roles of mental illness, substance abuse, and firearms in suicide).

¹²⁹ See Nat’l Ctr. for Health Stat., Provisional Drug Overdose Death Counts, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm (last visited Apr. 12, 2025) (exhibiting data on overdose deaths per year for synthetic and non-synthetic opioids); see generally Sam Quinones, Dreamland: The True Tale of America’s Opiate Epidemic (2015) (chronicling the devastation of the opiate epidemic on American communities).

¹³⁰ See, e.g., Nicole Maestas & Tisamarie B. Sherry, Opioid Treatment for Pain and Work and Disability Outcomes:

Evidence from Health Care Providers’ Prescribing Patterns, Nat’l Bureau of Econ. Rsch., (Oct. 15, 2020) (https://www.nber.org/programs-projects/projects-and-centers/retirement-and-disability-research-center/center-papers/nb19-28-2) (finding that opioid prescriptions facilitate disability claims and may lead to permanent separation from the workforce).

¹³¹ See, e.g., Ronald Hirsch, Perspective, The Opioid Epidemic: It’s Time to Place Blame Where It Belongs, 82 Mo. Med. 82, 82 (2017).

¹³² See Steve Brachmann & Gene Quinn, 95 Percent of WHO’s Essential Medicines Are Off-Patent, IP Watchdog (Sept. 12, 2016, 5:15 AM), https://ipwatchdog.com/2016/09/12/essential-medicines-off-patent/id%3D72542/ [https://perma.cc/3R52-G9M6]; Ass’n for Accessible Meds., The U.S. Generic & Biosimilar Medicines Savings Report 2022, at 3 (“In 2021, patients in the United States received 6.4 billion prescriptions, 91% of which were generic and biosimilar medicines.”).

¹³³ See generally Celli Horstman et al., Community Health Centers’ Progress and Challenges in Meeting Patients’ Essential Primary Care Needs, Commonwealth Fund (Aug. 8, 2024), https://www.commonwealthfund.org/publications/issue-briefs/2024/aug/community-health-centers-meeting-primary-care-needs-2024-FQHC-survey.

¹³⁴ See Trends in Cigarette Smoking Rates, Am. Lung Ass’n (May 30, 2024), https://www.lung.org/research/trends-in-lung-disease/tobacco-trends-brief/overall-smoking-trends [https://perma.cc/R2FZ-LR4B].

¹³⁵ See, Natalia C. Chacon et al., Substance Use During COVID-19 Pandemic: Impact on the Underserved Communities, 9 Discoveries art. no. e141, at 1 (2021).

¹³⁶ William M. Sage, What the Pandemic Taught Us: The Health Care System We Have Is Not the System We Hoped We Had, 82 Ohio St. L.J. 857, 863 (2021).

¹³⁷ See, e.g., Donald M. Berwick, Era 3 for Medicine and Health Care, 315 J. Am. Med. Ass’n 1329, 1329 (2016); Donald M. Berwick, The Moral Determinants of Health, 324 J. Am. Med. Ass’n 225, 225–26 (2020).

¹³⁸ See supra text accompanying notes 95–98.

¹³⁹ Kassirer, supra note 10, at 398.