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57 B.C. L. Rev. 1 (2016)

handle is hein.journals/bclr57 and id is 1 raw text is: HEALTH CARE AND THE MYTH OF SELF-RELIANCE NICOLE HUBERFELD* JESSICA L. ROBERTS** Abstract: King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance through an Exchange established by the State, Congress meant to subsidize policies bought on the federally run ex- change. With its ruling, the Court saved the Patient Protection and Affordable Care Act's (ACA) low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACAfacilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although both have been subject to high-profile Su- preme Court cases, the Court upheld one but gutted the other. This Article hy- pothesizes that the preference for private hidden government assistance over public visible government assistance stems from the American myth of self- reliance. Yet this analysis reveals that the line between hidden and visible bene- fits breaks down on both theoretical and empirical levels. Drawing from vulner- ability theory and demographic data, this Article demonstrates that all Ameri- cans lead subsidized lives and could move from the private to the public system. It concludes that a single government program for the poor would be more eco- nomically and administratively efficient. But there is another tradition that we share today. It calls upon us never to be indifferent toward despair. It commands us never to turn away from helplessness. It directs us never to ignore or to spurn those who suffer untended in a land that is bursting with abundance. -Lyndon B. Johnson 0 2015, Nicole Huberfeld & Jessica L. Roberts. All rights reserved. * Ashland-Spears Distinguished Research Professor of Law, University of Kentucky College of Law & Bioethics Associate, University of Kentucky College of Medicine. Thanks to Tim Jost, and colleagues at the ASLME Health Law Professors Conference for valuable feedback and to Elexis Wolis for diligent research assistance. Thanks always DT and SRHT. ** Director of the Health Law & Policy Institute and Associate Professor of Law, University of Houston Law Center. Thank you to the participants in the Emory Workshop on Vulnerability, especially Martha Fineman, and in the University of Houston Law Center Works-in-Progress Series. My appreciation likewise goes to Emily Lawson for library assistance and to Elaine Fiala for administrative aid. 1

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