Listado de casos de uso y diagrama de casos de uso del negocio

I argue in this Essay that it is important to take a limited, skeptical view of cross-border health policy arguments. Canada is significantly different from the U.S. in many respects, including in its commitment to health care as a public good and its concerns about market-based allocations of health insurance or health care. We need to be cautious when looking to Canada to ensure that we are not merely gazing at a reflection of our own hopes or anxieties. With this cautionary reminder, this Essay’s analysis has suggested several important observations about the health insurance debate in the United States.

Lesson 1: Look East or West rather than North or South

The data on cost, access, and health care outcomes suggests that both Canada and the United States should look to other countries for ideas about the organization and delivery of health care. While Canadians enjoy better health care at lower costs and with better outcomes than citizens of the United States, the health care systems of both countries suffer in comparison to other OECD countries.¹⁴⁸ In Chaoulli, the majority and concurring justices avoided citing the United States experience, relying instead the role of private health care of other OECD countries in Europe, Japan, and Australia.¹⁴⁹ Justice Deschamps, Chief Justice McLachlin and Justice Major therefore undoubtedly sought to avoid both the ideological baggage and poor results of the United States’ system. Advocates for health care reform in the U.S. might well follow this example and focus attention on other OECD countries.

Lesson 2: Courts Sometimes Resist Ideological Constraints

Canada and the U.S. are commonly distinguished by fundamentally different views about whether health care is an ordinary market commodity or a special social good. Peter P. Budetti has characterized the debate as between “market justice” and “social justice.”¹⁵⁰ In the U.S., where the market justice “runs deeply,” “[i]ndividual resources and choices determine

148 See supra, text accompanying notes 26-68.

149 See Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 833-36 (Can.) (Deschamps, J.); id. at 854 (McLachlin, C.J., and Major, J., concurring).

150 Peter P. Budetti, Market Justice and US Health Care, 299 JAMA 92 (2008).

the distribution of health care, with little sense of collective obligation or a role for government.”¹⁵¹ In Canada, the social justice view dominates: the view that “goods and services [are allocated] according to the individual’s needs... stems from principles of shared responsibility and concern for the communal well-being with government as the vehicle for ensuring social equity.”¹⁵² Courts sometimes act as a counterweight to these ideological commitments.

The Chaoulli decision is an example of this phenomenon. Quebec sought to justify its restriction on private health insurance as necessary to preserve the social justice basis of the public health care system. The government argued that private insurance would at minimum result in some individuals having better access to care than others based on their ability to pay and that it might, in addition, erode the social justice underpinnings of the public system.¹⁵³ A majority of the justices rejected this argument, finding that the government prohibition unreasonably risked the lives and health of individual Quebeckers.¹⁵⁴ The justices expressed concerns that the prohibition on private coverage was based on ideology rather than evidence.¹⁵⁵ In the end, the Supreme Court of Canada therefore actually supported the expansion of the private market for health insurance in Canada despite the social justice ideology prevalent in that country.

The recent en banc decision of the United States Court of Appeals for the District of Columbia in Abigail Alliance v. Eschenbach provides a parallel example from the United States.¹⁵⁶ In Abigail Alliance, plaintiffs challenged an FDA policy which prohibited manufacturers from selling certain experimental drugs to terminally ill patients.¹⁵⁷ The plaintiffs’

claims mirrored those asserted in Chaoulli: they argued that the federal rule had the effect of denying them access to potentially saving or life-extending treatment and therefore violated their fundamental right to self-preservation. As in Chaoulli, the market prohibition was justified, in part,

151 Id. at 92.

152 Id. Burdetti contends that “Social justice in health care requires universal coverage and ensured access to care, whether through social insurance, private insurance, or some combination.” Id.

153 See supra, note 120-22.

154 See supra, text accompanying notes 111-31.

155 See supra, text accompanying notes 119 & 125. Justice Deschamps noted that the courts were the last line of the defense for individuals when the government failed to act.

See supra, text accompanying note 129.

156 Abigail Alliance v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007), cert. denied 128 S. Ct. 1069.

157 Abigail Alliance, 495 F.3d at 697.

by the needs of the public: it was feared that giving terminally ill persons access to experimental therapies outside of clinical trials would compromise the integrity of the clinical trial system.¹⁵⁸ A panel decision favoring the plaintiffs was withdrawn and replaced by an en banc decision rejecting the claim that the market restriction implicated any fundamental right.¹⁵⁹ The United States Supreme Court denied certiorari.¹⁶⁰ In the end, the U.S. courts favored restricting the private market for experimental therapies, at least in part to preserve the public good.

Lesson 3: Ideological Commitments Nonetheless Substantially Constrain Health Care Reform

Canadians and Americans share a deep ideological commitment to the fundamental premises of their health care systems even as those premises are under considerable pressure. Canadians are deeply attached to the vision of health care as a public good allocated based on need rather than wealth, even as health care expenditures place increasing pressure on governmental budgets. Moreover, limits to the benefits provided under the Canadian Medicare program mean that 30% of health expenditures are paid by individuals or private health insurance.¹⁶¹ Yet the specter of private health care is considered to be a threat rather than either a present reality or as a viable option for addressing the growing constraints on the public health care system.

In some ways, Americans are even more constrained by ideological commitments. American rejection of “socialized medicine” or to government-run health care appears to ignore the realities of the health care market place in the U.S., in which 40% of the direct expenditures are made by governmental entities and even the employment-based “private” health

158 See, e.g., Peter D. Jacobson and Wendy E. Parmet, A New Era of Unapproved Drugs, 297 JAMA 205 (2007) (noting possible impact on clinical trials). Chaoulli and Abigail Alliance are not precisely analogous because Abigail Alliance involved a much greater uncertainty about whether permitting a patient to access the private market would actually protect that patient’s health or life. That is, it seemed probable that giving patients access to certain medical treatments in a private market would preserve and extend life but it is not nearly as clear that giving terminally ill patients access to unapproved drug therapies would actually preserve life.

159 Abigail Alliance, 495 F.3d at 711.

160 Abigail Alliance v. Eschenbach, 128 S. Ct. 1069.

161 See supra, text accompanying note 27.

insurance market is subsidized by substantial federal tax breaks.¹⁶² Policy debates in the U.S. are characterized by significant ideological -- and political -- commitments to preserving both the private health insurance market and the image of U.S. health care as primarily a private system with narrow public responsibility and involvement. President Bush’s veto of the expansion of the Children’s Health Insurance Program in 2008 was directly linked to the threat than the public program would draw enrollment away from the private health insurance market.¹⁶³

Health care reform efforts in both the United States and Canada therefore must meet ideological litmus tests, perhaps because both systems are close to a transformative “tipping point.” In both countries, significant reforms seem unlikely, despite relatively poor performance and high levels of public concern.¹⁶⁴ It sometimes seems that the primary purpose of policy comparisons between Canada and the U.S. is to assure citizens that no matter how concerned they are about their own health care system, they can at least be grateful that they do not have the other country’s system. Thus Canadians react just as negatively to the specter of a two-tiered health care system as Americans do to the threat of Canada’s erroneously-labeled system of “socialized medicine.” There is no fork in the road when it comes to health care reform because one path is blocked by ideological constraints. Even within the single permissible path, health care reform proposals are evaluated in part by whether they will create a side route away from the ideological commitments of each system.

162 See supra, text accompanying notes 30; Paul Fronstein and Dallas Salisbury, Health Insurance and Taxes: Can Changing the Tax Treatment of Health Insurance Fix Our Health Care System?, EMP. BENEFIT RES. INST. ISSUE BRIEF NO. 309, Sept. 2007, 1-25, http://www.ebri.org/pdf/briefspdf/EBRI_IB_09-20074.pdf; Paul Fronstin, Sources of Health Insurance and Characteristics of the Uninsured: Analysis of the March 2007 Current Population Survey, 2007 EMP. BENEFIT RES. INST. ISSUE BRIEF NO. 310, Oct. 2007, http://www.ebri.org/pdf/briefspdf/EBRI_ IB_10-20073.pdf.

163 Robert Pear, Veto Stands on Measure to Expand Health Plan, N.Y.TIMES, Jan.

24, 2008, at A18.

164 For a discussion of public concerns about health care in the U.S., Canada, and other countries, see Cathy Schoen, et al., Higher-Performance, supra note 36, at w717, w721 (Exhibit 2). Seventy-two percent of Canadians surveyed and 82% of Americans surveyed thought their health systems needed fundamental changes or to be rebuilt completely. Id. Twenty-six percent of Canadians and 16% of Americans thought their health care systems worked well with only minor changes needed.

Lesson 4: The Cross-Border Trade in Health Law is Underdeveloped The high level of cross-border policy debate between Canada and the United States can sometimes obscure the relative lack of interest in cross-border health law. In some senses this should not be surprising: law is after all a peculiarly national and local phenomenon. Legislation applies only within the legislature’s jurisdictional boundaries. Courts rely on precedents, most often from their own jurisdictions, and have only a limited authority to consider the legislation and judicial decisions of other countries. U.S. courts rarely cite the precedents of other jurisdictions as a basis for their own decisions and face considerable controversy when they do so.¹⁶⁵

Yet this Essay has suggested some areas in which health law academics and perhaps even health care advocates might profitably consider additional consultation and collaboration. The Chaoulli decision includes two areas of possible mutual interest: (a) a substantive exploration of when, if ever, restrictions on a private market can be considered to intrude on individual liberty; and (b) a process-oriented analysis of the role of courts in addressing the problems of a health care system in the face of legislative inaction.

Scholars thus might reasonably consider the close parallels between the Supreme Court of Canada’s decision in Chaoulli and the D.C. Court of Appeals decision in Abigail Alliance. The courts in these two cases struggled to define when and how restrictions on the creation of a private market impermissibly infringed individual life and liberty. It is at least interesting that the Supreme Court of Canada was more willing to accept such a claim than the D.C. Court of Appeals. There may well be aspects of the arguments or opinions in Chaoulli that might be used in presenting future claims in the U.S. The “self-preservation” argument made in Abigail Alliance might be more compelling, for example, in cases where the restriction on the market creates more definite harm for the individual and

165 See, e.g., Mark C. Rahdert, Comparative Constitutional Advocacy, 56 AMER.U.

L.REV. 553 (2007) (noting controversy in the U.S. Supreme Court regarding use of foreign precedent). Canadian courts are more comfortable with the use of foreign precedent, in part because of the shared legal heritage of commonwealth countries and in part because of the relatively small number of Canadian judicial decisions. Cf. Myra J. Tawfik, No Longer Living in Splendid Isolation: The Globalization of National Courts and the Internationalization of Intellectual Property Law, 32 QUEEN’S L.J. 573 (2007) (noting

“transjudicialism” on constitutional law and human rights cases, analyzing similar trend in Canadian IP jurisprudence).

where the collective interest market restrictions is based on ideology rather than demonstrated necessity.¹⁶⁶ Similarly, Canadian scholars and advocates might consider whether the Chaoulli decision means that the Canadian courts will be more receptive to other types of challenges to market restrictions, such as those governing experimental therapies or organ transplantation. The Chaoulli case also provides an interesting case study in the ability of courts to analyze and digest health policy and health policy research as well as in the role of courts in fostering health care reform.

Despite these linkages, as of November 2008, no reported decisions in Canada have cited the Abigail Alliance litigation and only one U.S. court has referred to the Chaoulli case.¹⁶⁷ Thirty-eight articles in U.S. journals found in the Westlaw JLR database referred to Chaoulli while no articles in the Canada-JLR database referred to Abigail Alliance.¹⁶⁸ The cross-border trade in health law theories and arguments may therefore have considerable room to grow in the years ahead.

166 For an influential discussion of the self-defense argument, see Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV.L.REV. 1813 (2007).

167 Westlaw search performed in the “allcases” (U.S.) and “can-allcases” (Canada) databases (search performed November 30, 2008).

168 Westlaw search performed November 30, 2008. For one particularly insightful comparative analysis, see, e.g., Roy G. Spece, Jr., A Fundamental Constitutional Right of the Monied to “Buy Out of” Universal Health Care Program Restrictions Versus the Moral Claim of Everyone Else to Decent Health Care: An Unremitting Paradox of Health Care Reform?, 3 J. HEALTH &BIOMEDICAL L. 1 (2007).

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