Deep Dive Episode 173 – The State of Healthcare Policy: from COVID-19 to Medicare for All

On Friday, April 16, 2021, the Federalist Society’s Georgetown Student Chapter hosted a webinar featuring professors Gregg Bloche, Larry Gostin, David Hyman, and Timothy Westmoreland discussing the current state of healthcare policy in the United States.


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and narration]


Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker. 


Host:  On April 16, The Federalist Society’s Georgetown Student Chapter hosted a virtual event featuring four Georgetown professors discussing the current state of healthcare policy in the United States. The following is the audio from that event. We hope you enjoy. 


Patrick Lyons:  Good evening, everyone, and welcome to the Georgetown Law Federalist Society’s event, “The State of Healthcare Policy: from COVID-19 to Medicare for All.” My name is Patrick Lyons, and I am co-president of our FedSoc chapter here at Georgetown.


The Federalist Society is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities. As always, please note that all expressions of opinion in this afternoon’s event are those of the speakers.


We are joined today by our distinguished speakers, Professor Larry Gostin, Professor David Hyman, Professor Greg Bloche, and Professor Timothy Westmoreland. Professor Gostin is the University Professor, Georgetown’s highest academic rank conferred by the University president. Professor Gostin directs the O’Neill Institute for National and Global Health and is the Founding O’Neill Chair in Global Health Law.


He served as Associate Dean for Research at Georgetown Law from 2004 to 2008. He is Professor of Medicine at Georgetown University and Professor of Public Health at the Johns Hopkins University. Professor Gostin is the Director of the WHO Collaborating Center on National —


Prof. Lawrence Gostin:  — We actually don’t need to go through it all. I think that’s more than enough. 


Patrick Lyons:  Okay. 


Prof. Lawrence Gostin:  I’m thoroughly embarrassed already, so let’s move on.


Prof. David Hyman:  Let’s just agree to less, Patrick, in the introduction.


Patrick Lyons:  Sure. Professor Hyman is the Scott K. Ginsburg Professor of Health Law and Policy at Georgetown Law. He focuses his research and writings on the regulation and financing of healthcare law, and he teaches in the areas of regulation, civil procedure, insurance, medical malpractice, law and economics, professional responsibility, and tax policy. 


Prof. David Hyman:  And that’s enough for now.


Patrick Lyons:  Okay. Professor Bloche is the Carmack Waterhouse Professor of Health Law, Policy, and Ethics at Georgetown Law. He is notably the author of The Hippocratic Myth: Why Doctors Are Under Pressure to Ration Care, Practice Politics, and Compromise Their Promise to Heal, and he’s a nationally and internationally recognized expert on health law and policy.


And finally, we have Professor Westmoreland, who has taught at Georgetown University about health law, federal budgets, and legislation since 2001. Prior to that, he was the Senior Policy Fellow at the Federal Legislation Clinic, and he’s worked extensively on public health and health finance policy.


Thank you to all of you for joining us this afternoon. We will start by discussing the policies surrounding the COVID-19 pandemic, and then shift gears to talk about the current state of the U.S. healthcare system. We will then open the floor up for Q&A from our attendees. If anyone has questions for our speakers, please submit them via the Q&A feature.


To start, I’d like to hear from each of you about how the U.S. has responded to the COVID-19 pandemic, specifically, what are some areas where we’ve performed well in addressing the pandemic? What are some areas where we did not? And finally, what are some takeaway lessons that we have learned from dealing with this crisis? We will start — Professor Gostin, if you would like to start us off?


Prof. Lawrence Gostin:  Okay. It’s virtually impossible — well, it’s not virtually impossible. It is impossible to answer that question in five minutes. And we’ve had the most catastrophic event of any of our lifetimes. So starting back in January of 2020, we saw a city the size of Wuhan locked down, 11 million people, and then 20 million in the wider Hubei province in China. At the time, the world had never seen such a complete shutdown, at least not since perhaps the 1918 influenza pandemic, and even then, the records are not clear on this.


Certainly, when I helped the CDC draft the Model State Emergency Health Powers Act after 9/11 and the anthrax attacks, I envisaged most of the powers that would be used during this pandemic, but I don’t think I could have imagined that a city the size of Wuhan would be locked down. Wuhan was locked down, very intrusive surveillance and punishment. And I remember at the time I was saying publicly this could never happen in a Western democracy. But of course, that’s exactly what happened. Paris, Milan, London, New York, San Francisco, and even Delhi, even India, the entire country locked down in the most dramatic depravation of freedom which we couldn’t have even imagined.


In the United States, I don’t think the law or public health was ever really prepared to fully understand and evaluate and effectively judicially review such sweeping emergency powers that the states have implemented, literally closing down businesses, issuing stay-at-home orders on individuals. And so the debate will go on as to whether these were justified infringements of civil and constitutional liberties or whether government went too far. 


The litigation and the political controversy is basically extended to just about all, if not all, of COVID-19 control measures. Certainly, there’s been the claim that there was an unreasonable interference with commerce and property rights which was not justified or overreaching for emergency health powers. State legislators and governors have clashed as well when the Trump administration was here, the federal and the state governments, about the extent to which emergency powers should be exercised, and also the duration on what they were exercised. And so there have been countless lawsuits around that. Mask mandates were similarly controversial.


And I think most litigated might be the orders to restrict the size of public gatherings. The Supreme Court has ruled on this several times now. The first ones, I think, twice siding with governors that wanted to restrict theses orders and have those restrictions apply equally to religious gatherings. But two recent Supreme Court decisions with the new conservative majority have flipped that.


And so one of the big — so I think that several questions loom large. Generally, how far can a state chief executive officer go, operating under legislative emergency powers, in controlling individual behavior and corporate behavior? That’s the first question. The second is what’s the duration? How long can the governor exercise these emergency powers? And then thirdly, whether — how stringent the court should review them. That is, should they take property and commerce more seriously? Should they take individual liberty more seriously, or should they just focus on explicitly protected constitutional rights like religion or the freedom of assembly and petition?


All of these, I think, are at stake. None of them are fully decided. Right now, in addition to lots of litigation, we also have legislators interested in reforming emergency powers. Many at the state level are trying to curb these emergency powers, but some who are in public health are looking to see about model legislation, and the Uniform Commission is looking into a model emergency powers health law that builds upon the Model State Emergency Health Powers Act that I mentioned right at the beginning that I worked with the CDC on after 9/11.

So that’s my whirlwind tour, and over to the rest of the distinguished panel.


Patrick Lyons:  Great. Professor Hyman?


Prof. David Hyman:  Following Larry when talking about public health is always a daunting prospect because it’s what he does all the time, and he’s a towering figure in the field.


Let me say a couple of things. First, we’re just a year and a couple of months out of the first case in the United States and almost just over a year since the first stay-at-home orders were issued in California and subsequently replicated in many states.


In terms of things that have gone well since then, I think one important thing that’s gone extraordinarily well is vaccine development. The estimates at the time of the outbreak were 5 to 10 years away, and less than a year out, as a result of both public and private research and public and private funding of research and development, we’ve got not one, not two, but three vaccines, one of which has some pushback on. And this is truly extraordinary in the history of infectious diseases. 


Interesting secondary questions in how should we think about pricing and paying for those things, particularly when there was some public funding involved. And significant public funding and public resources were involved in what became known as Operation Warp Speed during the Trump administration. I don’t know what it’s been renamed since then, but they’ve scrubbed — apparently, people don’t like Star Trek, so they’ve scrubbed all the references to warp from it.


But that’s truly extraordinary success story. I think the pharmaceutical industry takes a lot of static, some of it, maybe much of it deserved, but they really stepped up to the plate and have changed the playing field in ways that were simply impossible to anticipate a year ago.


The second thing that I think turned out to serve us well, and I suspect I’m tossing a bit of a grenade into the discussion, is federalism because even though bugs and viruses don’t respect state or national borders, variation in policy is really the only way in which you can learn what works and what doesn’t. Models are just models. They don’t actually tell you what will happen out in the real world. And so variation, New York, Florida, California, West Virginia, in terms of their stay-at-home policies, their social distancing policies, their who gets vaccinated first and how do we vaccinate policies, all of those, I think, are tremendously helpful in figuring out in the medium and long run what are good strategies for addressing this problem. 


In terms of what didn’t work so well, I think various parts of the federal government have some explaining to do, to quote the old Lucy episode. The CDC was created to deal with infectious diseases like this. It was funded on a level that, in retrospect, doesn’t turn out to be sufficient. But maybe its focus was more sweeping than the infectious diseases, and that distracted it from preparing for its core mission. 


Let me just read a brief paragraph that appeared in the news. “The CDC failed to provide timely counts of infections and deaths, hindered by aging technology and a fractured public health reporting system. It hesitated in absorbing lessons of other countries, including the perils of silent carriers. It struggled to calibrate its own imperative to be cautious and the need to move fast as the virus ravaged the country.”


And your first instinct is probably to say, “Well, Hyman, why are you quoting yourself? It’s clear that you’re not keen on the CDC’s performance.” This is The New York Times, a front page story critiquing the performance of the CDC. The FDA had its own issues. HHS had its strategic national stockpile, which had been depleted. And neither party in Congress thought it was worth spending money to prepare. We’ve historically underfunded public health at the state and local level. Those are all, I think, things that didn’t go nearly as well as they needed to for us to be able to prevent the wave of death and morbidity that’s the result of, as Larry said, a once-in-a-lifetime pandemic, for those of us on the panel. 


But that doesn’t mean that it’s the only once-in-a-lifetime event. Preparedness is going to turn out to be something that’s important going forward. And I think dealing with these government failures, rather than just increasing the funding, asking what went wrong, and what should they be doing different, and what shouldn’t we be funding that we were funding before is going to be important as well. So let me stop there.


Patrick Lyons:  Thank you, Professor Hyman. Professor Bloche?


Prof. Gregg Bloche:  Okay. First of all, I want to thank Patrick, his team at The Federalist Society, and the team at O’Neill for organizing this event and for being politically ecumenical about it. We need so much more conversation like this, conversation that’s across our political and cultural divides, conversation that’s aimed at understanding and solving problems rather than stoking angry passions. 


Some thoughts about COVID, and like David, I will defer to Larry and his towering standing in the realm of public health. I think it should be pointed out that, unfortunately, public health law has been treated in America as a backwater. And all of a sudden, here we are with the planet’s number one crisis being a crisis of public health, a crisis that perhaps could have been managed much better had public health governance domestically and internationally not been treated for so long as a backwater. And Larry has been pressing hard in an often sometimes lonely effort to move public health concerns up to the fore.


Okay, so my quick thoughts about COVID. There are two astonishingly different stories to tell about COVID-19 in America. Story number one is a story of a tragedy of shocking proportion. We are on track toward more death in this country, if you count excess deaths as well as confirmed COVID deaths, than the 675,000 that we experienced during the 1918 to 1919, really 1918 to 1920, flu pandemic.


And this tragedy hasn’t played out evenly across this country. During the first half of 2020 alone, before most of the dying was done, African American life expectancy dropped by 2.7 years compared to 0.8 years for whites. And God knows what those numbers are going to look like once we incorporate the nightmarish surge in COVID deaths that we saw as we move into the late fall and through the wintertime of 2021.


And this tragedy was avoidable. The narcissism of one man, a president who refused to meet the moment, stoked an anti-science madness that killed hundreds of thousands. And the recent remarks of Dr. David Burks and others who worked during the Trump period to try to contain this virus underscore the avoidability of the tragedy. 


But then there’s story number two, and David Hyman alluded to this. Story number two is a story of one of the great scientific and technical triumphs in human history, the development of vaccines in time to save the lives of millions around the world, if we get the vaccines out there. And it’s a story of a triumph of American science.


It’s too early to issue definitive comparative judgements among the vaccines. This is going to require head-to-head trials. Hopefully, those trials will happen. But early evidence suggests that the novel American strategy of delivering messenger RNA to our cells to enable them to make viral antigen has yielded vaccines that are more effective and maybe even safer than those made via older methods that involve delivering viral antigens directly into our bodies. 


And this technology could revolutionize the production of vaccines for influenza and other illnesses. It has the potential to transform the treatment of cancer as well. It’s a case, just like the space program, of a moment of great urgency leading to crash developments in science and technology that then transform other spheres in unpredictable ways.


It’s critical to note, though, that this technology isn’t, in the main, the product of the pandemic. It’s the product of decades of American public investment in basic science. We should draw from our vaccination accomplishment the lesson that ongoing public commitment to basic biomedical science is hugely important, even when the health benefits lie over the horizon. 


We also need now to act on awareness that intellectual property protection has its value and its limits. Widespread licensing of vaccine technologies to low-cost manufactures around the world is an urgent matter if we are to get most of the world vaccinated in the months ahead, or even few years ahead. And getting most of the world vaccinated is an urgent matter if we are to prevent the planet from becoming a long-term toxic stew of evolving COVID variants. 


There’s much more to be said, but I’ll wait until our discussion. 


Patrick Lyons:  Thank you, Professor Bloche. Professor Westmoreland, do you want to add anything about the COVID discussion?


Prof. Timothy Westmoreland:  I do. First, I need to associate myself with the remarks that have been previously made, starting with the high praise for Larry’s work for years now, but associating myself with David and Gregg about some of the things that have worked well. 


Vaccine development has been astonishing in this area, and I say this as a veteran of trying to get AIDS vaccines done, and still not there. And we have — I also agree with David that we have done a terrible job over the years of investing in federal, state, and local public health infrastructure. And I think it’s the fault of politics writ large because we immediately go to the life threatening treatments, therapies, and shortchange those things that might save us even illness in the first place. 


But the thing I wanted to add was something that Gregg alluded to, which was how disappointing I found it that in the U.S., of all places, that the last administration not only disregarded science but actively tried to subsume it to public relations and politics. And for years, despite the paragraph that David read, CDC has been my favorite government agency. But the Trump administration almost broke it, suppressing data, attempting and apparently succeeding in politically editing reports, and even what many of us regard as the sacred text of public health, the Morbidity and Mortality Weekly Report being edited by HHS and White House staff. 


This ends up, plus the kinds of activities that Gregg was describing by the president himself, with a whole lot still today of confused basics, things that should not have been confused, things that should not have been misunderstood, and highly politicizing some of the most basic responses that should have been things that we recognized immediately as public health basics. 


And in turn, I agree with David that this has shown us many thing about federalism. But in turn, this confusion that was caused, in some cases on purpose, at the federal level has left state and local authorities not only flailing in some cases, but themselves, public health people, subject to harassment and in some cases violence such that the O’Neill Institute, among others, has tried to provide basic legal advice — I shouldn’t say that. Not legal advice, but advice about legal remedies for state and local health officers to be able to protect themselves both from vigilante responses and also state politicians who are politicizing the basics of public health. 


I find that quite disappointing at a federal, state, and local level that we were turned away, turned away, from the basics of science and public health so much. I think that the new administration and the new CDC director have done much to recover and to repair. It’s refreshing to see the amount of science-based activity and the candor about what we do and don’t know. And I would note that all of this is predicated on, as David was talking about, federalism because CDC has remarkably few national authorities. It’s dependent on cooperation between the federal government and the state government for CDC activities. 


But not everything can be repaired. Once the wicked fairy has been let out of the bottle, it’s hard to get him or her back into the bottle. And some of these basics remain politicized and remain subjects of anger, harassment, and even in some cases, violence. So I’m very pleased to associate myself with the successes that my colleagues have named, but I’m also very disappointed that we all were led to disregard science and public health in the most basic ways. Thanks.


Oh, and Patrick, I’m sorry. I should have begun by thanking you and The Federalist Society for inviting me to be here.


Patrick Lyons:  Thank you, Professor Westmoreland. Now at this time, let’s shift gears and talk about the second topic we were going to discuss today, the current state of the healthcare system. So to start, I guess, could you guys talk about currently the system we have? What are some of the strengths of the system? What are some of the weaknesses of the system? And regarding reform, I guess we can start, is reform necessary, and if so, what policy proposals do you believe would most effectively improve our system? And are there any potential risks or downsides to adopting any one of these proposals? We will start with Professor Bloche.


Prof. Gregg Bloche:  Okay. I was going to start, actually, with some thoughts about where we are politically and legally, and how that frames and constrains the work to be done. And so much has been said by so many folks, including several of us participating on this panel, including yours truly, about the extent to which our system is deeply fragmented, the extent to which it fails to reward clinical value, and the extent to which it fails to extend access to both health preserving and life conserving medical care to all Americans, irrespective of their socioeconomic standing and race and ethnicity. These are profound policy and moral failures that any health reform that’s worthy of our respect and regard needs to deal with.


Okay. Well, let’s look at some realities. First of all, the title of this event. Well, Medicare for All is in the title for this event, but Medicare for All is not going to happen. The politics aren’t there. We don’t live in an alternate universe in which there are 60-some Democrats in the Senate and a large Democratic majority in the House with overwhelming majorities of Democrats in both Houses being supporters of single-payer.


We live in the fragmented world that we — we live in a fragmented reality. Even a robust public option would be a heavy lift. Given the politics, President Biden’s and congressional Democrats’ success in expanding subsidies for purchase of health insurance on the exchanges and enlarging federal support for Medicaid expansion was quite an accomplishment.


Another thing that’s not going to happen in the imaginable future, even if Republicans take the House and the Senate next year and the presidency in 2024, is repeal and replace. Part of the genius of the Affordable Care Act is that it’s simply the most conservative means possible for pulling Americans into the financial risk pool to the extent necessary to expand coverage by tens of millions of people, compared to where we stood before the Affordable Care Act was passed.


That’s why every Republican replacement plan proposed during the Trump years foundered. All would have taken coverage away from 10 to 20 million or more people. And some of you all might remember a period of time when Republicans would make repeal and replace proposals and then wait for Congressional Budget Office assessment. And then those proposals would be blown out of the water every time the CBO came back with rejections for up to 20 million or more people losing insurance. And it’s simply not now politically acceptable to strip coverage from that many people. Expectations of coverage are too locked in. And that means expectations of society-wide spreading of the financial burden of medical care are locked in. 


This is a huge problem for conservatives, many of whom, in fact, reject society-wide spreading of medical care’s financial burden, even when this rejection requires many to go without healthcare. This rejection is what animates, I submit, the repeal and replace quest. And yet, American politics is no longer a safe space for Republicans to admit to either this rejection or their willingness to see tens of millions of Americans go without health insurance and care. That’s a bind for Republicans. And I would anticipate that over the medium to longer term, there’s going to be an acknowledgement that this expectation of coverage, like expectations for Medicare and Social Security in previous generations, these things are baked in. 


So what’s the real work that needs to be done and that can be done? Well, I and some, but perhaps not all of us, in this group believe that expanding access to make it truly universal is an urgent matter in order to finish the job that the ACA started. And I would single out Tim Westmoreland for a leadership career on this front. His bio left out his heroic work that he did  while working as a staffer for Representative Henry Waxman in gradually expanding the Medicaid program under very difficult political conditions. And Tim also ran the Medicaid program during the period within the Clinton years. And so the expansion of access is critical.


But there’s real work that needs to be done in the cost side, particularly if we’re going to not see healthcare as a suck on our economy and not see healthcare as a suck on our ability to make investments, public investments as well as private investments, in things that are much more urgent to keeping this country at the cutting edge, soaring medical costs, taking spending and value seriously.


Neither Democrats nor Republicans have done very well at this. And the Affordable Care Act does very little to set value-based limits on medical spending. In fact, a few of the provisions within the Affordable Care Act that had the most promise for getting at medical spending have been eliminated by Congress in subsequent years. That’s something we could talk about if folks want to.


And a huge challenge here is the interaction of human psychology, our expectation that people rescue others in dire need, in fact, our admiration for rescuers. The interaction of this psychology of rescue of Americans’ can-do, technology-loving culture, the very thing that got us much of the way toward COVID vaccines, also poses a threat when it comes to low-value health spending and the settled expectations of healthcare industry’s many large players, health insurance payment and intellectual property protections that are untethered to clinical value. And these things turbocharge investment in the low marginal benefit technologies of the future, sustaining the process of rising costs.


We need to get a grip on this process, and any strategy that can be cast as rationing, whether it’s a strategy pursued by the public sector, Medicare or Medicaid, or by private insurers—think about the backlash against managed care in the late 1990s—any strategy that can be cast as rationing is a political nonstarter. Nobody wants to see Grandma put metaphorically on an ice floe.


So the strategy here, rather, the long-term challenge here is to nudge the trajectory of technological change in a more value-oriented, course conscious direction without being perceived as engaging in rationing. My colleague Neel Sukhatme and I have set out a strategy for doing this, and we’ve published this in a few places, and we’re planning to work some more on this, and so that’s a plug for our stuff.


But I think however we go about it, that is the long-term strategy to avoid really scary numbers in terms of proportion of America’s GDP that could go to healthcare, numbers that could rise to levels over the decades of this coming century in excess of 40 or 50 percent. Those numbers aren’t going to happen, but those numbers underscore the urgency of getting a grip.


Second, I would underscore the urgency of addressing social determinants of health. And COVID has, of course, put these determinants in high relief. It’s, of course, not true that the virus doesn’t discriminate. It is a voracious class and racial discriminator. COVID practices apartheid. And so hopefully, if one good thing can come from this nightmare, awareness of the conditions of life and their effect on health and life expectancy can lead to taking these determinants much more seriously. 


I’m going to stop now. There’s so much more that can and should be said, though.


Patrick Lyons:  Thank you, Professor Bloche. Professor Westmoreland?


Prof. Timothy Westmoreland:  Yes, I think the thing that the ACA did that was most successful and the thing that still needs the most work is on Medicaid. It won’t surprise you — to a hammer, everything looks like a nail; I’m who I am, and everything looks like a Medicaid problem. 


From its very beginnings, Medicaid has been an incomplete program. Most people think of it as healthcare for the poor, but it, in fact, is healthcare for, and has been for a long time, healthcare for just some of the poor. You have to be very poor under the terms of the state. It is a federalist program to its core. You have to be very poor and something else; very poor and pregnant, very poor and a kid, very poor and over 65, very poor and totally disabled and unable to work.


But for those people who didn’t fit into one of these pigeonholes, Medicaid was for decades a program that left you out in the cold. Zero income, zero assets, homeless on the street, and you’re still not federally eligible for Medicaid. And this is with the federal government matching the state expenditures at levels of 50 to 80 percent, depending on how low income the state is.


The ACA finished that coverage. It included all poor people, regardless of what category they were in. And for that expansion, the group of people who didn’t fit into one of the pigeonhole categories before, the federal government paid 100 percent of the cost the first few years and brought it down to 90 percent forever after that.


But then came the NFIB Supreme Court decision. NFIB, I think, to everyone’s surprise, said that the federal government could not require states to do this as a condition of receiving the billions and billions of dollars of federal spending. It’s a precedent setting case. I think everyone was astonished by it. But that left the point that the expansion to finishing the rest of the Medicaid coverage became a state option. Now, the Fed still would pay the vast majority of it, but a state option to decide.


At this point, 39 states have elected to expand, and that is the greatest success that I was referring to. That means 12 million new beneficiaries, 12 million people who didn’t have health insurance before who now do have health insurance. But the non-expansion in the remaining states is 2 million more people, something we usually call the coverage gap. It’s people who are too poor to qualify for the health insurance exchanges but under the laws of the state are too affluent to qualify for and also are not categorically eligible.


So states without the — that haven’t done the expansion, the non-expansion states, also have a disproportionate number of poor people, a disproportionate number of uninsured people. And so the states’ citizens have the most to gain at 90 percent federal expense forever. And I have to add, as Gregg was leading up to, a disproportionate number of black people. If you look at the map that the Kaiser Family Foundation posts regularly of who has expanded and who has not, it pretty much looks like the old Confederacy. And it is disproportionately a black population. And I find it hard to believe that that is unrelated to the question of what states have expanded and what states not. And so the very core of federalism and its treatment for racial minorities, I think, is at stake in this. 


The early COVID legislation passed last year added 6 percentage points to what the federal government will pay for Medicaid during the public health emergency. So that makes the minimum payment 56 percent federal, and in many states, much higher than that. Mr. Trump extended that once, and Mr. Biden has extended it again. So it’s now through the middle of next year that the states are going to have what we call a percentage bump there.


And the stimulus package that was just passed has added a new incentive for these non-expansion states of 5 percent of the cost of their basic program for the next two years if they’ll expand to cover the people at 90 percent federal expense during the next few years. This is by anyone’s estimate a huge windfall of federal dollars to the states who have chosen not to expand Medicaid to their citizens up until this point.


No budget officer in the country would look at these numbers and say, “Don’t do this.” There are billions of dollars lying on the table for the states who choose to expand the Medicaid program and to reach those disproportionately poor, disproportionately uninsured, and disproportionately black people who are still in the coverage gap.


But we’re waiting to see. That legislation is relatively new, and we’re waiting to see whether the states will overcome their inertia and actually expand and complete the Medicaid program. But the greatest success was what the ACA did for Medicaid, and the part that still remains to be done is what needs to be fixed. Thank you.


Patrick Lyons:  Thank you, Professor Westmoreland. Professor Hyman?


Prof. David Hyman:  I’m now shamed into acknowledging the wonderful contributions of The Federalist Society, shamed because my other panelists got there first, the contributions of The Federalist Society in putting this together and the O’Neill Institute for generously co-sponsoring it.


Let me start more or less where Gregg left off, which is on cost. The people in the field refer to the iron triangle of health policy as involving cost, quality, and access. And the two presentations you’ve heard so far on health reform have started with access and then talked about cost. I actually have the opposite approach. I always start by talking about cost. In fact, I wrote a book called Overcharged: Why Americans Pay Too Much for Healthcare that my three co-panelists generously blurbed and said nice things about it, and hopefully believed them.


But if you’re going to look at a success of the American healthcare system, it’s its success in using every dollar of resources that anyone will put anywhere in its vicinity. If we’re number one at anything, it’s hoovering up money into the healthcare system, often not in ways that lead to population health or even individual health but are pretty good for the people that are working in the field. And the politics, not surprisingly, follow from that. Every dollar of healthcare spending is a dollar of income for someone working in the healthcare field.


If we don’t address the cost problem, no matter what we do to expand access currently, we’re going to end up facing a crunch downhill, downstream on those issues, similar to what we see in Social Security, similar to what we see in Medicare. Every year, there are trustees reports for both of those programs that basically say, “Guess what? We can’t afford these programs. We need to do something to lower the spending trajectory, lower the level of spending, improve the value.”


And pretty much, it’s like in Washington every year. The tree blossoms come out, and there’s a trustees report, and then nothing much happens. The blossoms fall off. The report gets put on the shelf. That’s the problem with the approach that, with all due respect, both Tim and Gregg are pushing towards us, which is broader government expansion of coverage without paying nearly as much attention to the fiscal aspects of that and the affordability of that.


And I also don’t want to ignore the social determinants of health that Gregg and, to a lesser extent, Tim both point us towards. Spending on healthcare doesn’t do much when it’s the social determinants of health that are driving the outcomes. That calls for reallocating spending away from the healthcare system and addressing the core drivers of those things. And that’s going to be an even heavier lift than expanding access because expanding access isn’t as fraught with controversy as taking aggressive steps to address social determinants of health.


With respect to Tim’s observations, let me just point out that—and also Gregg’s observations about sharing costs more broadly—there’s long history in Western philosophy of viewing people as deserving of assistance and not deserving of assistance. And many of our social policies fall out of that basic divide, and the original structure of Medicare — excuse me, of Medicaid as well as ideas about who qualifies for charity care, I think, track that intuition.


The Affordable Care Act, or PPACA, as I like to call it, because there’s really not that much in there that makes care affordable, and to the extent there was, as Gregg pointed out, it got scrubbed out in the political process post-adoption, represents a rejection of that view. But we’ll see how sticky it is. The fact that a bunch of states are turning away the money that Tim has rightly pointed out is on the table for them to grab indicates that it’s not just politics. There’s also a competing moral vision about who’s deserving of assistance and who’s not. 

And that, I think, highlights the last point I want to make, which is debates about health reform are not simply about narrow technical issues and not simply about budgets. They’re also about normative visions. And the competing normative visions is the ground on which we’ve been fighting about health reform for the last century.


So let me stop there and let Larry have the last word.


Prof. Lawrence Gostin:  Well, all I can say is I feel the same as you guys said when you followed me. I don’t know what I could say that three incredible experts in the field — and I’m certainly not one of them.


I think the one thing I can say is that I have lived under other health systems, a lot of them, Australia, Canada, the U.K. I’ve studied Germany’s and some of the Scandinavian systems. And so I’m tempted to say, what’s good about the U.S. health system, and my answer is nothing, and then I could just stop.


But I actually kind of agree with all of the panelists. To start backward from the last to the first, I like David’s book a lot. I think that the left side of politics really should care a lot about cost and waste and fraud and all of that that he documented extraordinarily well in his book. I’m not sure I would agree with his solutions to that, but the main part of his book was really — we need to find solutions to it, and it’s just not sustainable. And I think that that’s a really important message.


For me, the Affordable Care Act, I guess, is the anchor, along with Medicaid and Medicare. I don’t really know what the future of the American health system will be. I do know that at the political level, there’s really a lot I don’t agree with, and maybe almost all I don’t agree with. 


And the political left with the idea of Medicare for All, the left really doesn’t understand two things. One is that to get to universal coverage, very few places in the world use a single-payer system like the Medicare system. So there are a lot of ways to get to universal coverage. And I just thought that there was on left side of the Democrats, there was a particular lack of sophistication of the kinds of ways that we could do that.


And then on the political right, the message that at least I get, and I’m 100 percent sure I oversimplify, is that we just have to fix the market. And I just don’t accept that market forces, when somebody’s really, really sick, and when it’s so complicated, that we can do it. I know every day I get something in the mail from MedStar explaining the costs of what it is, and I’m supposed to be a good consumer. I don’t even open the envelopes. I just put them down. There’s just like no point.


And then in the middle, it’s basically tinkering around the edges of Medicaid and the ACA. And I think that’s where the future of America is. It’s going to be a constant expansion, I hope, of Medicaid and of the Affordable Care Act. Far from a perfect way for a health system to behave, but I don’t expect to be alive when there’s any truly fundamental reform of the U.S. health system. I’ve just been at it too long and seen the partisan divide that it’s just hard to accept.


And I think the public is just so focused on their own choice, choosing my doctor, choosing my healthcare provider. You could see that with COVID, with gaming the system and getting the vaccines first or the monoclonal antibodies. And America’s kind of a system where relatively privileged people really try to make a lot of what they think are informed choices. I’m not sure they are. But as far as I know, no other country that’s really serious takes choice to the extent that we do. And they focus rather on cost, access, quality kinds of issues.


Okay, that’s me.


Patrick Lyons:  Thank you, Professor Gostin. So with the time remaining, I think we’re only going to have time for one Q&A. And so this question I’m looking at, this is for Professor Gostin and anyone who’d like to comment. You have written about some of the legal and ethical concerns surrounding vaccine passports. Can you discuss your thoughts on the pros and cons of states or private actors choosing to use these methods?


Prof. Lawrence Gostin:  Well, it’s a complicated subject. But I think my biggest concern about vaccine passports isn’t the concern that I hear all the time, which is basically an autonomy or a privacy concern. I think from the autonomy point of view, vaccine passports don’t force anybody to be vaccinated, but they say if you’re not vaccinated, you may not be able to go into certain high-risk environments. And I think individuals do have the right to make decisions about their own health and safety. I don’t think they have the right to expose other people to an infectious disease.


I wrote a JAMA piece with Glenn Cohen from Harvard very, very recently. And Glenn made the point in our article that he thinks that vaccine passports are actually privacy protective because they don’t require any medical information other than the fact of whether you’ve got the credential. I’m mostly concerned about equity. I think it’s that you can’t introduce a vaccine passport system, or you shouldn’t, in a private or a public system until everybody who wants a vaccine can get a vaccine. And we’re not quite there yet, but I think we will be there quite soon in terms of equity, that I do think is important.


There are certain areas — Zeke Emanuel just wrote in the Times and others, and I tended to agree with a lot of what he said, but not everything. There are certain particular areas where I think the duty to be vaccinated is a much higher one. For example, in nursing homes, prison settings, or other congregant settings, and probably also in healthcare settings where I think there’s a duty to create a safe environment for patients. In a nutshell, that’s it. I’m broadly in favor, but with some caveats. 


Prof. David Hyman:  Let me just add, I agree with everything Larry said, especially the point about not deploying it until we’ve got anybody who wants it is able to get it because then you’re avoiding replicating the kinds of problems we’re seeing on access.


Just two additional points. One is you ought to worry about someone having monopoly on what counts as a vaccine passport. If we’ve learned anything from social networks’ handling of access, choke points can be beneficial, but they can also be exploited in ways that should make us very uneasy, harkening back to Larry’s initial point about the lockdown in Wuhan and the heavy-handed measures that we saw being employed.


But I think the good news is nobody’s going to require it when you want to go see the cherry blossoms, and I want to thank Tim for reminding me that that’s what access is really all about here. So I’ll stop there. 


Prof. Gregg Bloche:  A brief thought. This would be a David Hyman-esque thought, perhaps. I would expect that we would see the market driving many institutions to require vaccine certification, and that there really might not need to be as much of a role for government as some are urging. I think there are going to be a whole lot of folks who’ll be a whole lot happier about getting on airliners or worse, going through TSA, who are coming back to Georgetown Law Center next fall as students or as faculty or staff, or going into a Whole Foods or a Trader Joe’s if there’s confidence that everybody who goes in has been vaccinated, and that should actually lead to these institutions wanting to require vaccination.


What’s scary in this realm is some government officials wanting to get in the way, most notably, perhaps, the governor of Florida. It’s hard to know whether he’s just trying to appeal to the Trumpist wing for the purpose of the 2024 presidential primaries, or whether this is a larger ideological trend, the notion of actually banning — prohibiting private industry from — prohibiting the private sector from embracing vaccine certification requirements. I think that’s worrisome, and I dare say rather anticonservative. 


Patrick Lyon:  All right, everyone. Well, with that, we are past the 2 p.m. mandate, so on behalf of the Georgetown Law Federalist Society, I’d like to thank each of you for attending today’s event. This was a great panel. And if no one has any other comments, we will conclude for the day.


Prof. Lawrence Gostin:  Thank you, Patrick. And to The Federalist Society, we appreciate you organizing it. 


Patrick Lyon:  All right. Thank you, everyone. Have a good day.




Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at




This has been a FedSoc audio production.

M. Gregg Bloche

Carmack Waterhouse Professor of Health Law, Policy, and Ethics

Georgetown University

Lawrence Gostin

University Professor, Founding Linda D. & Timothy J. O’Neill Professor of Global Health Law, Faculty Director of O’Neill Institute for National & Global Health Law, Georgetown University

Director, World Health Organization Collaborating Center on Public Health Law & Human Rights

David A. Hyman

Scott K. Ginsburg Professor of Health Law & Policy

Georgetown University

Timothy M. Westmoreland

Professor from Practice

Georgetown University

FDA & Health

Federalist Society’s Georgetown Student Chapter

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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