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72 Fla. L. Rev. 49 (2020)
Against the "Safety Net"

handle is hein.journals/uflr72 and id is 49 raw text is: AGAINST THE SAFETY NET Matthew B. Lawrence* Abstract Then-Representative Jack Kemp and President Ronald Reagan originated the safety net conception of U.S. health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the social safety net of programs for those with true need. Legal scholars have adopted their metaphor widely and uncritically. This Article deconstructs the safety net metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the safety net as comprising morality-tested subsistence programs (as did Representative Kemp and President Reagan), but others understand it as comprising all subsistence programs (whether reserved for those with true need or not); or both subsistence programs and poverty-prevention programs; or even the full panoply of laws that affect in any way the human ecosystem in which people live, die, sometimes get sick, and sometimes get help. Moreover, the vision that the metaphor conjures of laws springing into action to rescue an independent individual should she fall contradicts feminist and communitarian conceptions of the subject of regulation. Relatedly, this vision of law as a net reifies laws involved in rescue but not those involved in preventing harm, building resilience, or promoting equality, thereby hiding social and structural determinants of health and inequality and taking sides on difficult prioritization questions raised by acknowledging such determinants. In light of these arguments against the safety net, this Article endorses the ecosystem and other alternative terms that highlight rather than elide unresolved questions about the means and ends of health and welfare laws. * Assistant Professor of Law, Pennsylvania State University, Dickinson School of Law; Affiliate Faculty, Harvard Law School, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. Thanks to Aziza Ahmed, Michele Alexandre, Glenn Cohen, Lance Cole, Martha Fineman, Nancy Hirschmann, Tiffany Jeffers, Medha Makhlouf, Linda C. McClain, Lauren Taylor, Sydney Watson, Lindsay Wiley, and attendees of the Vulnerability and the Human Condition Initiative Workshop on the Clash of Values: Paternalism versus Liberalism at Emory University School of Law. Special thanks to Bryan Caffrey for exemplary research assistance. 49

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