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Code Red

The Essential Yet Neglected Role of Emergency Care in Health Law Reform

Published online by Cambridge University Press:  06 January 2021

Shaun Ossei-Owusu
Shaun Ossei-Owusu*
Affiliation:
Academic Fellow and Kellis E. Parker Teaching Fellow, Columbia Law School. J.D. 2016, University of California Berkeley School of Law; Ph.D., 2014, University of California Berkeley; M.L.A., 2008, University of Pennsylvania; B.S., 2007, Northwestern University.
*
[email protected]
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Abstract

The United States' health care system is mired in uncertainty. Public opinion on the Patient Protection and Affordable Care Act (“ACA”) is undeniably mixed and politicized. The individual mandate, tax subsidies, and Medicaid expansion dominate the discussion. This Article argues that the ACA and reform discourse have given short shrift to a more static problem: the law of emergency care. The Emergency Medical Treatment and Active Labor Act of 1986 (“EMTALA”) requires most hospitals to screen patients for emergency medical conditions and provide stabilizing treatment regardless of patients' insurance status or ability to pay. Remarkably, this law strengthened the health safety net in a country that has no universal health care. But it is an unfunded mandate that responded to the problem of emergency care in a flawed fashion and contributed to the supposed “free rider” problem that the ACA attempted to cure.

But the ACA has also not been effective at addressing the issue of emergency care. The ACA's architects reduced funding for hospitals that serve a disproportionate percentage of the medically indigent but did not anticipate the Supreme Court's ruling in NFIB v. Sebelius, which made Medicaid expansion optional. Public and non-profit hospitals now face a scenario of less funding and potentially higher emergency room utilization due to continued uninsurance or underinsurance. Alternatives to the ACA have been insufficiently attentive to the importance of emergency care in our health system. This Article contends that any proposal that does not seriously consider EMTALA is incomplete and bound to produce some of the same problems that have dogged the American health care system for the past few decades. Moreover, the Article shows how notions of race, citizenship, and deservingness have filtered into this health care trajectory, and in the context of reform, have the potential to exacerbate existing health inequality. The paper concludes with normative suggestions on how to the mitigate EMTALA's problems in ways that might improve population health.

Type
Articles
Information
American Journal of Law & Medicine , Volume 43 , Issue 4 , November 2017 , pp. 344 - 387
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2017

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Footnotes

This paper benefitted from comments and conversations with Aziza Ahmed, Khiara Bridges, Brietta Clark, Mary Crossley, Laura Hermer, Lisa Ikemoto, Jasmine Johnson, Olati Johnson, Dayna Matthews, Candace Player, Dave Pozen, Jed Purdy, Sidney Watson, Kristen Underhill, and Rose Cuison Villazor. I am also grateful for feedback from participants in the Socio-legal workshop at the University of California, Irvine School of Law and the Columbia Law School Associates & Fellows Workshop. All errors are my own.

References

1 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).

2 American Recovery and Reinvestment Act of 2009. Pub. L. No. 111-5, 123 Stat. 115 (2009); see Derek Thompson, The Most Controversial Laws of the Last 100 Years (The Stimulus and Obamacare Are 1 and 2), The Atlantic (Sept. 23, 2013) https://www.theatlantic.com/politics/archive/2013/09/the-most-controversial-laws-of-the-last-100-years-the-stimulus-and-obamacare-are-1-and-2/279899/ [http://perma.cc/VKS7-JX5T].

3 Elizabeth Wilner & Mitchell West, The Affordable Care Act's Place in Advertising History (2014), http://thehill.com/sites/default/files/cmag_aca_deck_v4_embargoed_1.pdf [https://perma.cc/B23Q-5NZJ].

4 See Kaiser Health Tracking Poll: The Public's Views on the ACA, Kaiser Fam. Found. (Aug. 11, 2017), kff.org/interactive/kaiser-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable&aRange=twoYear&total [http://perma.cc/HA77-RBNS]. The ACA has become more popular since Republican repeal efforts. Id.

5 Id.

6 Kyle Dropp & Brendan Nyhan, One-Third Don't Know Obamacare and Affordable Care Act Are the Same, N.Y. Times (Feb. 7, 2017), https://www.nytimes.com/2017/02/07/upshot/one-third-dont-know-obamacare-and-affordable-care-act-are-the-same.html [http://perma.cc/3PCN-Y6N7]; Ezra Klein, 53% of Republicans Don't Know Repealing Obamacare Repeals the Medicaid Expansion, Vox (Feb. 8, 2017), https://www.vox.com/policy-and-politics/2017/2/8/14536074/obamacare-aca-polling-republicans [http://perma.cc/7NYT-J8JY]; Megan McCluskey, Watch Jimmy Kimmel Prove People Still Think Obamacare and the Affordable Care Act Are Different Things, Time (Jan. 18, 2017), time.com/4637918/jimmy-kimmel-obamacare-vs-affordable-care-act/ [https://perma.cc/2DHXM8RX].

7 See, e.g., Howard K. Koh & Kathleen G. Sebelius, Promoting Prevention Through the Affordable Care Act, 363 New Eng. J. Med. 1296-99 (2010); Obama, Barack, United States Health Care Reform Progress to Date and Next Steps 316 JAMA 525 (2016)CrossRefGoogle ScholarPubMed; Julie Beck, Kathleen Sebelius on King v. Bnurwell: Obamacare Is Here to Stay, The Atlantic (June 26, 2015), www.theatlantic.com/politics/archive/2015/06/what-king-v-burwell-means-for-the-partisan-debate-over-obamacare/396977/ [http://perma.cc/5XMY-AB3K]; Jonathan Chait, 6 Years After Obamacare's Passage, Haters Refuse to Accept Reality, N.Y. Mag. (Mar. 29, 2016), nymag.com/daily/intelligencer/2016/03/obamacare-haters-refuse-to-accept-reality.html [http://perma.cc/8DL4-WS3L]; Michael Cohen, Obamacare: An Unheralded Success, Boston Globe (Apr. 21, 2016), https://www.bostonglobe.com/opinion/2016/04/21/obamacare-unheralded-success/montTA45UvggSgwA0Myd8K/story.html [http://perma.cc/3JYY-EGJU].

8 Bob Bryan, ‘Don't Repeal Obamacare — Improve It’: Republicans Face Wrath at Town-hall Events, Bus. Insider (Feb 22. 2017), www.businessinsider.com/republican-town-halls-obamacare-repeal-voter-anger-2017-2; Jennifer Calfas, John McCain Fears GOP Health Care Bill is ‘Going to Fail’, Time (July 9, 2017), http://time.com/4850708/john-mccain-health-care-bill-senate/ [http://perma.cc/7FRB-WLHF]; Curt Mills, Boehner Says GOP Won't Scrap Obamacare, U.S. News (Feb. 23. 2017), https://www.usnews.com/news/politics/articles/2017-02-23/john-boehner-gop-will-not-repeal-and-replace-obamacare [http://perma.cc/2VH8-YY5J]; Louise Radnofsky & Siobhan Hughes, GOP Senators Propose Health Law Replacement that Lets States Opt Out, Wall St. J. (Jan. 23. 2017), https://www.wsj.com/articles/some-republicans-wary-of-repealing-aca-without-replacement-plan-1485172801; Sean Sullivan, Kelsey Snell and Juliet Eilperin, Senate GOP's Health Plan Debuts Amid Doubts, Wash. Post (June 22, 2017), https://www.washingtonpost.com/powerpost/senate-gop-leaders-set-to-unveil-health-care-bill/2017/06/22/56dbe35c-5734-11e7-a204-ad706461fa4f_story.html?utm_term=.0521be04a4e4 [http://perma.cc/5FGK-9NGB].

9 Geoff Colvin, Trump's Shifting Positions: How to Prepare for the Unpredictable, Fortune (Nov. 14, 2016), fortune.com/2016/11/14/donald-trump-policies-obamacare-trade/ [http://perma.cc/XH72-4399]; Nicole Duran, Confusion in GOP After Trump's Obamacare Comments, Wash. Examiner (Jan. 10, 2017), http://www.washingtonexaminer.com/confusion-in-gop-after-trumps-obamacare-comments/article/2611429 [http://perma.cc/2CZ6-5T4N]; Editorial: Trump Has it Backward on House Health Care Bill, St. Louis Dispatch (May 1, 2017), http://www.stltoday.com/opinion/editorial/editorial-trump-has-it-backward-on-house-health-care-bill/article_f9f6e7d8-78a9-5607-b782-42f0a8e407cb.html [http://perma.cc/YB5X-YRK3]; Steven Erlanger, As Trump Era Arrives, A Sense of Uncertainty Grips the World, N.Y. Times. (Jan. 16, 2017), https://www.nytimes.com/2017/01/16/world/europe/trump-eu-nato-merkel-brexit-russia-germany-china.html; Ed Kilgore, The Radical Unpredictability of Donald Trump, N.Y. Mag. (Dec. 29, 2016), nymag.com/daily/intelligencer/2016/12/the-radical-unpredictability-of-donald-trump.html [http://perma.cc/5KX3-LTKW]; Ben Shapiro, To Promise Free Things Is to Lie, Nat. Rev. (Mar. 22, 2017), www.nationalreview.com/article/445967/republicans-trump-should-stop-lying-no-free-health-care-nothing-free [https://perma.cc/8JN9-9SVR]; Jay Willis, Report: Donald Trump Is Extremely Mad That His Own Health Care Bill Is Too “Mean,” GQ (June 13, 2017), www.gq.com/story/trump-incredible-self-own [http://perma.cc/CP7J-X23L].

10 42 U.S.C. § 1395dd (2011).

11 42 U.S.C. § 1395dd(b)(1).

12 Max Ehrenfreund, How the GOP Would Cut Billions More from Medicaid with a Single Letter, Wash. Post (June 22, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/06/22/how-the-gop-would-cut-billions-more-from-medicaid-with-one-letter/?utm_term=.49fbddf5e41d.

13 Daniel Halper, Trump: No One Will Die in the Street with New Health Care Plan, N.Y. Post (Jan. 18, 2017), nypost.com/2017/01/18/trump-no-one-will-die-in-the-street-with-new-healthcare-plan/ [http://perma.cc/L6J4-KAXS] (“nobody is going to be dying on the streets with a President Trump”); Kristine Phillips, ‘Nobody Dies Because They Don't Have Access to Health Care,’ GOP Lawmaker Says. He Got Booed., Wash. Post (May 7, 2017), https://www.washingtonpost.com/news/powerpost/wp/2017/05/06/nobody-dies-because-they-dont-have-access-to-health-care-gop-lawmaker-says-he-got-booed/?utm_term=.707aeade2649; see also President George W. Bush, Remarks at the Intercontinental Hotel in Cleveland, Ohio (July 10, 2007), https://georgewbushwhitehouse.archives.gov/news/releases/2007/07/20070710-6.html [http://perma.cc/9NPA-4G3E] (“[P]eople have access to health care in America. After all, you just go to an emergency room.”).

14 Hall, Mark and Perrin, Jacob, Irregular Migrant Access to Care: Mapping Public Policy Rationales, 8 Pub. Health Ethics 130, 131 (2015).CrossRefGoogle Scholar

15 See generally, Beatrix Hoffman, Health Care for Some: Rights and Rationing in the United States Since 1930 (2012). But see Annas, George J., A Poor Read on Rights, Rationing, and Racism, 32 Health Aff. 627 (2013)CrossRefGoogle Scholar (critiquing Hoffman's understanding of rationing).

16 Kant Patel & Mark E Rushefsky, Health Care Politics and Policy in America 294 (4th ed. 2014).

17 Id. See also Mechanic, David, Muddling Through Elegantly: Finding the Proper Balance in Rationing 16 Health Aff. 83 (1997).CrossRefGoogle ScholarPubMed

18 Fassin, Didier, Compassion and Repression: The Moral Economy of Immigration Policies in France, 20 Cult. Anthro. 362, 366 (2005).CrossRefGoogle Scholar

19 42 U.S.C. § 1395dd(b)(1) (2011).

20 See Mohanty, Sarita A. et al., Health Care Expenditures of Immigrants in the United States: A Nationally Representative Analysis, 95 Am. J. Pub. Health 1431 (2005).CrossRefGoogle ScholarPubMed

21 See Olga Khazan, Yes, Medicaid Expansion Increases ER Visits, but Only Temporarily, The Atlantic (Oct. 15, 2014), https://www.theatlantic.com/health/archive/2014/10/medicaid-expansion-increases-er-visits-but-only-temporarily/381457/ [http://perma.cc/2APJ-NG65].

22 See Chavez, Leo R., Undocumented Immigrants and Their Use of Medical Services in Orange County, California, 74 Soc. Sci. & Med. 887 (2011)CrossRefGoogle ScholarPubMed (finding that undocumented immigrants underutilize medical services when compared to legal immigrants and citizens); Cunningham, Peter J., What Accounts for Differences in the Use of Hospital Emergency Departments Across U.S. Communities? 25 Health Aff. 324 (2006)CrossRefGoogle ScholarPubMed (finding that communities with high emergency care use have few number of Latino and non-citizen residents); Mohanty et al., supra note 20 (finding that health care expenditures are substantially lower for immigrants than for US-born persons but emergency department expenditures were more than 3 times higher for immigrant children than for US-born children); Pourat, Nadereh, et al, Assessing Health Care Services Used By California's Undocumented Immigrant Population in 2010, 33 Health Aff. 840 (2014)CrossRefGoogle ScholarPubMed (finding that uninsured undocumented immigrants in California had fewer ED visits compared to US citizens and other immigrant groups); Stimpson, Jim P., Wilson, Fernando A., and Eschbach, Karl, Trends in Health Care Spending for Immigrants in The United States, 29 Health Aff. 544 (2010)CrossRefGoogle ScholarPubMed (finding that immigrants are not contributing disproportionately to high health care costs but that they are more likely to have a health care visit classified as uncompensated care); Zallman, Leah et al., Immigrants Contributed an Estimated $115.2 Billion More to the Medicare Trust Fund Than They Took Out in 2002–09, 32 Health Aff. 1153 (2013).CrossRefGoogle ScholarPubMed

23 Joel F. Handler & Yeheskel Hasenfeld, Blame Welfare, Ignore Poverty and Inequality (2006); Kenneth J. Neubeck & Noel A. Cazenave, Welfare Racism: Playing the Race Card Against America's Poor (2001); Jill Quadagno, The Color of Welfare: How Racism Undermined the War on Poverty (1996); Ellen Reese, Backlash Against Welfare Mothers: Past and Present (2005).

24 Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

25 Oberlander, Jonathan, The End of Obamacare, 371 New Eng. J. Med. 1, 1 (2017)CrossRefGoogle Scholar (“Donald Trump's triumph in the 2016 presidential election marks the beginning of an uncertain and tumultuous chapter in U.S. health policy.”); Wilensky, Gail R., How Will Public Health Fare in a Trump Administration? 107 Am. J. Pub. Health 235, 237 (2017)Google Scholar (“The uncertainty about how a new Trump Administration and a Republican Congress will regard public health is substantial.”).

26 See generally Bloche, M. Gregg, The Invention of Health Law, 91 Cal. L. Rev. 249-250. (2003)CrossRefGoogle ScholarPubMed (contending that courts invent health law by way of an unruly mix of state and federal agencies and from a jumble of statutes and common-law doctrines' conceived, in the main, without medical care in mind); Elhauge, Einer, Allocating Health Care Morally, 82 Cal. L. Rev. 1449, 1452 (1994)CrossRefGoogle ScholarPubMed (describing the inconsistency of health law policy and how the field “borrows haphazardly from other fields of law, each of which has its own internally coherent conceptual logic, but which in combination results in an incoherent legal framework and perverse incentive structures”); Hall, Mark A., The History and Future of Health Care Law: An Essentialist View, 41 Wake Forest L. Rev. 347, 354 (2006)Google Scholar (providing a brief intellectual history of health law and arguing that the field is much richer and more sophisticated than its origins, but it is still a hodgepodge); Jost, Timothy S., Our Broken Health Care System and How to Fix It: An Essay on Health Law and Policy, 41 Wake Forest L. Rev. 537, 539 (2006)Google Scholar (arguing that health law “has grown by accretion only an ad hoc basis over the decades” and is “grounded by a very complicated, sometimes contradictory, web of regulatory law”); Levitsky, Sandra R., Integrating Law and Health Policy, 13 Ann. Rev. L. Soc. Sci. 33, 34 (2013)CrossRefGoogle Scholar (“the cultural turn in sociolegal studies, emphasizing law's role in the construction of relationships, identities, and everyday life, has resulted in a shift away from the study of state policy altogether. As a consequence, we know very little about the role of state policy in making key aspects of social life (such as market-based health care provision) seem natural and normal or about the ways in which social policies shape how individuals imagine solutions to new social problems (such as health care inequality).”); Rosenblatt, Rand E., The Four Ages of Health Law, 14 Health Matrix 155 (2004)Google ScholarPubMed (describing the different models that have dominated health law since the late 19th century).

27 Levitsky, supra note 26, at 35.

28 Id. at 34 (“considerations of law by public health scholars have largely relied on a very narrow understanding of the role law can play in producing health policy reforms: Existing scholarship sees law from a strictly court-centered point of view, as a set of commands from courts or legislatures that direct the behavior of individuals.”).

29 See generally Khiara Bridges, Reproducing Race: An Ethnography of Pregnancy as A Site of Racialization (2011); Dayna Bowen Matthew, Just Medicine: A Cure for Racial Inequality in American Health Care (2015); Bowser, René, Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities, 7 Mich. J. Race & L. 79 (2001)Google Scholar; Calvo, Janet, The Consequences of Restricted Health Care Access for Immigrants: Lessons from Medicaid and SCHIP, 17 Annals Health L. 175 (2008)Google Scholar; Clark, Brietta, The Immigrant Health Care Narrative and What It Tells Us About the U.S. Health Care System, 17 Annals Health L. 229 (2008)Google Scholar; Crossley, Mary, Infected Judgment: Legal Responses to Physician Bias, 48 Vill. L. Rev. 195 (2003)Google ScholarPubMed; Goodwin, Michele & Chemerinsky, Erwin, No Immunity: Race, Class, and Civil Liberties in Times of Health Crisis 129 Harv. L. Rev. 956 (2016)Google Scholar; Ikemoto, Lisa C., In the Shadow of Race: Women of Color in Health Disparities Policy, 39 U.C. Davis L. Rev. 1023 (2006)Google Scholar; Noah, Barbara A., Racial Disparities in the Delivery of Health Care, 35 San Diego L. Rev. 135 (1998)Google ScholarPubMed; Paul-Emile, Kimani, Patients' Racial Preferences and the Medical Culture of Accommodation, 60 UCLA L. Rev. 462 (2012)Google Scholar; Randall, Vernellia R., Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy!, 15 St. Louis U. Pub. L. Rev. 191 (1996)Google Scholar; Roberts, Dorothy E., Debating the Cause of Health Disparities Implications for Bioethics and Racial Equality, 21 Cambridge Q. Healthcare Ethics 332 (2012)CrossRefGoogle ScholarPubMed; Rosenbaum, Sara, et al. Civil Rights in a Changing Health Care System, 16 Health Aff. 90 (1997)CrossRefGoogle Scholar, Rutherford, Charlotte, Reproductive Freedoms and African American Women, 4 Yale J. L. & Feminism 255 (1992)Google ScholarPubMed; Villazor, Rose Cuison, Community Lawyering: An Approach to Addressing Inequalities in Access to Health Care for Poor, of Color and Immigrant Communities, 8 N.Y.U. J. Legis. & Pub. Pol'y 35 (2004)Google Scholar; Watson, Sidney D., Reinvigorating Title VI: Defending Health Care Discrimination—It Shouldn't Be So Easy, 58 Fordham L. Rev. 939 (1990)Google Scholar; Yearby, Ruqaiijah, Racial Inequities in Mortality and Access to Health Care, 32 J. Legal Med. 77 (2011).CrossRefGoogle ScholarPubMed

30 See e.g., Daniel S. Greenberg, Health-Care Thrift Spurs Patient-Dumping, L.A. Times, Nov. 12, 1984, at C5; Kenan Heise, ‘Dumping’ The Poor at County Hospital Angers Staff,” Chi. Trib., Sept. 3, 1982, at A3.

31 Parks, Jennifer et al., Financial Triage in Transfer of Trauma Patients: A Myth or a Reality? 198 Am. J. Surgery 303, e35 (2009)CrossRefGoogle ScholarPubMed (conceptualizing “wallet biopsy” as the transfer of patients by smaller hospitals in regionalized trauma systems to major trauma centers for the purposes of minimizing financial risks).

32 Long, Michael J. et al., The Impact of Diagnosis Related Group Profitability on the Skimming and Dumping of Psychiatric Diagnosis Related Groups, 39 Int'l J. Soc. Psychiatry 108, 108 (1993)CrossRefGoogle ScholarPubMed; see also Buczko, William, Inpatient Transfer Episodes Among Aged Medicare Beneficiaries, 15 Health Care Fin. Rev. 71, 87 (1993).Google ScholarPubMed

33 Parks et al., supra note 31.

34 See Kellermann, Arthur L. et al., Emergency Department Patient ‘Dumping’: An Analysis of Interhospital Transfer to the Regional Medical Center at Memphis, Tennessee, 78 Am. J. Pub. Health 1287, 1290 (1988)CrossRefGoogle ScholarPubMed (“[S]tudies have suggested that growing numbers of unstable emergency department patients are being transferred from private to public hospitals for purely economic reasons—a practice that has come to be termed patient ‘dumping’.”).

35 See Rosenbaum, Sara et al., Case Studies at Denver Health: ‘Patient Dumping’ In the Emergency Department Despite EMTALA, the Law That Banned It, 8 Health Aff. 1749, 1750 (2010)Google Scholar (defining “patient dumping” as providers' refusal to care for patients experiencing medical emergencies, due, in part, to their uninsured status).

36 To be sure, there was the Hospital Survey and Construction Act, 60 stat. 1041 (1976) (as amended 42 U.S.C. § 291 (1976), also known as the Hill-Burton Act. This law provided federal funds for hospital construction. The law had a requirement that hospitals make a “reasonable volume of hospital services to persons unable to pay” but discrimination persisted because of the law's weak enforcement mechanism. See Karen Kruse Thomas, Deluxe Jim Crow: Civil Rights and American Health Policy, 1935-1954, 157-81 (2011); Clark, Brietta R., Hospital Flight from Minority Communities: How Our Existing Civil Rights Framework Fosters Racial Inequality in Healthcare, 9 DePaul J. Health Care L. 1023, 1051-55 (2005)Google Scholar; Dowell, Michael A., Hill-Burton: The Unfulfilled Promise, 12 J. Health Pol., Pol'y & L. 153 (1987).CrossRefGoogle ScholarPubMed

37 See Rowland, Diane et al., Medicaid: Health Care for the Poor in the Reagan Era, 9 Ann. Rev. Pub. Health 427 (1988).CrossRefGoogle Scholar

38 Fine, Jeffrey E., Opening the Closed Doors: The Duty of Hospitals to Treat Emergency Patients, 24 Wash. U. J. Urb. & Contemp. L. 123 (1983)Google Scholar; Powers, Leonard S., Hospital Emergency Service and the Open Door, 66 Mich. L. Rev. 1455 (1968)CrossRefGoogle Scholar; Rothenberg, Karen H., Who Cares?: The Evolution of the Legal Duty to Provide Emergency Care, 26 Hous. L. Rev. 21 (1989).Google Scholar

39 See Ronald Sullivan, Care of Poor is Cut by Private Hospitals, N.Y. Times, May 30, 1982, at 1.

40 Heise, supra note 30.

41 Id.

42 Sullivan, supra note 39.

43 Margaret Engel, Hospitals Refusing to Admit Poor, Wash. Post, Oct. 15, 1984, at B1.

44 Id.

45 Emily Friedman, The Law That Changed Everything—and It Isn't the One You Think, Hosps. & Health Networks Daily (Apr. 5, 2011), http://www.hhnmag.com/Daily/2011/Apr/friedman040511-4770007463 [http://perma.cc/5N7B-ZNZ9].

46 Frank, Cheryl, Dumping The Poor: Private Hospitals Risk Suits, 71 A.B.A. J. 25, 25 (1985).Google Scholar

47 Greenberg, supra note 30.

48 Hospitals in Cost Squeeze “Dump” More Patients Who Can't Pay Bills, Wall St. J., Mar. 8, 1985, at 33.

49 See U.S. Comm'n on C.R., Patient Dumping (2004).

50 42 U.S.C. § 1395dd (2011). This includes patients who are not physically in the emergency room but who are on hospital grounds, or in an ambulance that is owned or operated by the hospital. See 42 C.F.R 489.24(b)(3) (2011).

51 42 U.S.C. at § 1395dd(a).

52 Id. § 1395dd(e)(1).

53 Id.

54 Id. § 1395dd(c)(1).

55 Id. § 1395dd(e)(3)(A).

56 Id. § 1395dd(c)(1)(A)(i)-(ii).

57 Id. § 1395dd(d)(1)(A).

58 Id. § 1395dd(d)(1)(B)(ii).

59 See David G. Smith & Judith D. Moore, Medicaid Politics and Policy 380 (2011) (“There is a distributive issue of practical morality that is different from and in addition to the political and legal considerations: who is the Medicaid entitlement for? … Read as a whole, the statute would seem to imply that the neediest come first, but it doesn't say so, and that leaves open issues of practical morality that arise in the distribution of benefits as between the neediest and the needy; shifting the risk from the insurer to the insured; and sharing the burdens of cost containment.”).

60 See Lamm, Richard, The Moral Imperative of Limiting Elderly Health Entitlements, in Policies for an Aging Society 199, 209, 214 (2002)Google Scholar (“We are a compassionate society and can afford a lot but we cannot afford everything…What may have been unethical under assumptions of infinite resources becomes ethical in the trade-off world of finite resources. Many concepts must be reconsidered and redebated. Does not a society owe a greater moral duty to a 10-year-old than a 90-year-old?”).

61 131 Cong. Rec. 28,568 (1985).

62 Id. at 28, 569.

63 See generally, Paul Pierson, Dismantling the Welfare State?: Reagan, Thatcher and the Politics of Retrenchment (1995) (describing late 20th century efforts by conservatives to reduce the size of the welfare state).

64 Richard Epstein, Mortal Peril: Our Inalienable Right to Health Care? 91 (2000) (“[b]eware of the power of anecdote to drive public policy …. To understand EMTALA, therefore we must go beyond the dramatic incidents of a single transfer to a broader understanding of its long-term institutional consequences.”); Hyman, David A., Lies, Damn Lies, and Narrative, 73 Ind. L. J. 797, 810-11 (1997)Google Scholar (“EMTALA was enacted because horror stories about patient dumping persuaded Congress to take action …. The (admittedly limited) empirical evidence on the subject was largely ignored, and all involved admitted that they were legislating on the basis of anecdotes.”); Hyman, David A., Patient Dumping and EMTALA: Past Imperfect/Future Shock, 8 Health Matrix 29, 33 (1998)Google ScholarPubMed (“Anecdotal evidence can help to put a human face on a particular problem. However, such evidence provides no basis for legislation until the truthfulness, typicality, and frequency of the anecdote is established – and disregarding these precepts is exceedingly unwise.”).

65 See U.S. Comm'n on C.R., supra note 49; Ballard, Dustin W. et al., EMTALA, Two Decades Later: A Descriptive Review of Fiscal Year 2000 Violations, 24 Am. J. Emergency Med. 197 (2006)CrossRefGoogle ScholarPubMed; Rosenbaum et al., supra note 35; Smith, Jennifer M., Screen, Stabilize, and Ship: EMTALA, U.S. Hospitals, and Undocumented Immigrants (International Patient Dumping), 10 Hous. J. Health L. & Pol'y 309 (2010)Google Scholar; Charleen Hsuan, Hospital Responses to the Emergency Medical Treatment and Labor Act (EMTALA): Noncompliance, Hospital Utilization and Readmissions, and Strategic Ambulance Diversions (2016).

66 131 Cong. Rec. 28,491, 28,568 (1985).

67 See Sawyer, Nicolas T., Why the EMTALA Mandate for Emergency Care Does Not Equal Healthcare “Coverage”, 18 W. J. Emergency Med. 551, 551-552 (2017).CrossRefGoogle Scholar

68 James T. Bennett, Mandate Madness: How Congress Forces States and Localities to Do Its Bidding and Pay for the Privilege 1 (2014). See also Paul Posner, The Politics of Unfunded Mandates: Whither Federalism? 6 (1998) (arguing that unfunded mandates break “the link between the joy of enacting benefits and the pain of paying for them” which not only jeopardizes intergovernmental accountability, but allows state and local costs to be perceived as free and creates “federal incentives to literally pass the buck when federal budgetary constraints tighten.”).

69 Congress did provide funds for hospitals that provided a significant percentage of care to a disproportionate number of low-income patients through the Disproportionate Share Hospital (“DSH”) program beginning in 1981, but this program covers a larger swath of uncompensated care.

70 U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”); Jones, Gary E., Regulatory Takings and Emergency Medical Treatment, 47 San Diego L. Rev. 145, 146 (2010)Google Scholar; Klock, Mark, The Taxing Power of the Federal Government and the General Welfare: What Are the Limits in the Wake of NFIB v. Sebelius? 76 U. Pitt. L. Rev. 325 (2015)Google Scholar; Lundstrom, Tammy, Under-Reimbursement of Medicaid and Medicare Hospitalizations as an Unconstitutional Taking of Hospital Services, 50 Wayne L. Rev. 1243 (2004)Google Scholar; Hethcoat, Gayland Oliver II, Note, Free Hospital Care and the Takings Clause: Franklin Memorial Hospital v. Harvey in a Changing Health-Care Landscape, 65 U. Miami L. Rev. 169, 179–80 (2010).Google Scholar

71 See Brewbaker, William S., Health Care Price Controls and the Takings Clause, 21 Hastings Const. L.Q. 669 (1994)Google Scholar; Merrill, Thomas W., Constitutional Limits on Physician Price Controls, 21 Hastings Const. L.Q. 635 (1994).Google Scholar

72 Burditt v. U.S. Dep't of Health & Human Servs., 934 F.2d 1362 (5th Cir. 1991).

73 Id. at 1366.

74 Id. at 1367.

75 Id.

76 See Heimlicher v. Steele, 615 F. Supp. 2d 844 (N.D. Iowa 2009).

77 See Epstein, supra note 64, at 91. See also Harris, Dean M., Beyond Beneficiaries: Using the Medicare Program to Accomplish Broader Public Goals, 60 Wash. & Lee L. Rev. 1251, 1276 (2003)Google Scholar (“the Act does not explain why an obligation of society to provide indigent care should be borne, without compensation, by hospitals that provide services to Medicare beneficiaries. One could argue, perhaps, that some amount of additional bad debt for emergency treatment is a reasonable quid pro quo for a hospital's privilege of participating in a lucrative federal purchasing program.”).

78 Lundstrom, supra note 70.

79 Haavi Morreim, Taking Medical Care from Hospitals, Regulation, Fall 2014, at 46.

80 Id. at 51.

81 Id.

82 Managed Pharmacy Case v. Sebelius, 716 F.3d 1235 (9th Cir. 2013) (holding that because participation in Medicaid is voluntary, providers do not have a property interest in a specific reimbursement rate as it relates to the Takings Clause); Franklin Mem'l Hosp. v. Harvey, 575 F.3d 121 (1st Cir. 2009) (holding that a state law requiring free medical services to low income patients did not constitute a compensable taking of the plaintiff-hospitals property); Garelick v. Sullivan, 987 F.2d 913, 916 (2d Cir.1993) (“A property owner must be legally compelled to engage in price-regulated activity for regulations to give rise to a taking … where a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and thus there can be no taking … because they voluntarily choose to provide services in the price-regulated Part B program, the plaintiff anesthesiologists do not have a viable takings claim.”); Minn. Ass'n of Health Care Facilities, Inc. v. Minn. Dep't of Pub. Welfare, 742 F.2d 442, 446 (8th Cir.1984) (“Despite the strong financial inducement to participate in Medicaid, a nursing home's decision to do so is nonetheless voluntary. This voluntariness forecloses the possibility that the statute could result in an imposed taking of private property which would give rise to the constitutional right of just compensation.”); St. Francis Hosp. Ctr. v. Heckler, 714 F.2d 872, 875 (7th Cir. 1983) (“the fact that practicalities may in some cases dictate participation [in Medicare] does not make participation involuntary.”).

83 Baker Cty. Med. Serv.s, Inc. v. U.S. Att'y Gen., 763 F.3d 1274, 1280 (11th Cir. 2014) (“We recognize the financial difficulties and perceived inequity that may come with shortfalls in a rural hospital's reimbursement for costs associated with providing emergency treatment to federal detainees, but conclude that the Takings Clause of the Fifth Amendment is not the proper vehicle for altering this harsh reality. As is so often the case, the Hospital's most effective remedy may lie with Congress rather than the courts.”).

84 Legal Services Corp., Documenting The Justice Gap In America: The Current Unmet Civil Legal Needs Of Low Income Americans, http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009.pdf [https://perma.cc/NLR5-VVW6]; Lawton, Ellen M. & Sandel, Megan, Investing in Legal Prevention: Connecting Access to Civil Justice and Healthcare Through Medical-Legal Partnership, 35 J. Legal Med. 29 (2014).CrossRefGoogle ScholarPubMed In fact, one study found that civil legal aid availability coincides with health outcomes. See Teufel, James et al., Legal Aid Inequities Predict Health Disparities, 38 Hamline L. Rev. 329, 353–54 (2015).Google Scholar

85 See Legal Services Corp., supra note 84.

86 42 U.S.C. § 1395dd(d)(2) (2011).

87 While plaintiffs have attempted to infer a private cause action against doctors, courts have consistently rejected such claims. See Reynolds v. Mercy Hosp., 861 F. Supp. 214 (W.D. N.Y. 1994); Kaufman v. Cserny, 856 F. Supp. 1307 (S.D. Ill. 1994); Mazurkiewicz v. Doylestown Hosp., 223 F. Supp. 2d 661 (E.D. Pa. 2002); Medero Diaz v. Grupo De Empresas De Salud, 112 F. Supp. 2d 222 (D.P.R. 2000). One court has found that EMTALA provides a private cause of action against an emergency room physician, but this decision is in the minority and courts have refused to follow it. See Sorrells v. Babcock, 733 F. Supp. 1189 (N.D. Ill. 1990).

88 Mello, Michelle M., et al., National Costs of the Medical Liability System, 29 Health Aff. 159 (2010).CrossRefGoogle ScholarPubMed

89 See Rothberg, Michael B., et al., The Cost of Defensive Medicine on 3 Hospital Medicine Services, 174 JAMA Internal Med. 1867 (2014).CrossRefGoogle ScholarPubMed

90 See generally American Health Lawyers Association, The Health Care Director's Compliance Duties: A Continued Focus of Attention and Enforcement (2011).

91 Judith A. Waltz et al., What to Know About New HHS Civil Money Penalties, Health Care L. Today (Jan. 3, 2017), https://www.healthcarelawtoday.com/2017/01/03/what-to-know-about-new-hhs-civil-monetary-penalties/ [http://perma.cc/T6KS-VEHP].

92 Sophie Terp and her colleagues analyzed EMTALA-related OIG civil settlements between 2002 and 2015 and found that out of 196 settlements, only 4% were levied against individual physicians, whereas the remaining 188 were against facilities. Sophie Terp et al., Individual Physician Penalties Resulting from Violation of EMTALA: A Review of Office of the Inspector General Patient Dumping Settlements, 2002 æ 2015, Acad. Emergency Med. (2017).

93 Department of Health and Human Services Office of Inspector General, OEI-09-98-0021: The Emergency Medical Treatment And Labor Act: The Enforcement Process (2001), https://oig.hhs.gov/oei/reports/oei-09-98-00221.pdf [https://perma.cc/H9FP-8XKL].

94 Dame, Lauren A., The Emergency Medical Treatment and Active Labor Act: The Anomalous Right to Health Care, 8 Health Matrix 3, 5 (1998).Google ScholarPubMed

95 Seminole Tribe v. Florida, 517 U.S. 44 (1996).

96 Drew v. Univ. of Tenn. Reg'l Med. Ctr. Hosp., 211 F.3d 1268 (6th Cir. 2000); Thomason v. Med. Ctr. of La. at New Orleans, No. Civ.A. 99-3734, 2001 WL 839030 (E.D. La. 2001); Cheromiah v. United States, 55 F. Supp. 2d 1295 (D.N.M. 1999); Lebron v. Ashford Presbyterian Cmty. Hosp., 975 F. Supp. 407 (D.P.R. 1997); Vazquez–Morales v. Estado Libre Asociado de P.R., 967 F.Supp. 42 (D.P.R. 1997); Perez-Bourdon v. Commonwealth of Puerto Rico, 951 F. Supp. 22 (D.P.R. 1997).

97 Garwin, Mark J., Immunity in the Absence of Charity: EMTALA and the Eleventh Amendment, 23 S. Ill. U. L.J. 1, 2 (1998).Google Scholar

98 Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint 52 (2001).

99 See Richards, Nathan S., Judicial Resolution of EMTALA Screening Claims at Summary Judgment, 87 N.Y.U. L. Rev. 591 (2012).Google Scholar

100 Roberts v. Galen of Va., Inc., 525 U.S. 249 (1999).

101 Id. at 252.

102 Id. at 253.

103 See Marshall v. East Carroll Par. Hosp. Serv., 134 F.3d 319, 323-24 (5th Cir.1998) (“it is the plaintiff's burden to show that the Hospital treated her differently from other patients; a hospital is not required to show that it had a uniform screening procedure.”); Colon v. Hosp. Dr. Pila, 330 F. Supp. 2d 38 (D.P.R. 2004) (holding that the plaintiff bears the burden of proving that in screening him or her, the hospital failed to follow the screening policy or standard of care which it regularly follows for other patients presenting substantially similar conditions).

104 See Reynolds v. Maine Gen. Health, 218 F.3d 78, 84 (1st Cir. 2000) (holding that it is not enough to proffer expert testimony as to what treatment should have been provided to a patient in the plaintiff's condition and requiring a showing that the patient received materially different screening than did other patients in his condition); Hoffman v. Tonnemacher, 425 F.Supp.2d 1120, 1130 (E.D. Cal. 2006).

105 Del Carmen Guadalupe v. Negron Agosto, 299 F.3d 15 (1st Cir. 2002) (finding that written screening policies may be helpful for EMTALA claimants but are not necessary); Nolen v. Boca Raton Cmty. Hosp., Inc., 373 F.3d 1151 (11th Cir. 2004) (finding that a hospital is not required under to have a written emergency screening procedure under EMTALA).

106 See Richards, supra note 99, at 594.

107 Ferris, James M. & Graddy, Elizabeth A., Structural Changes in the Hospital Industry, Charity Care, and the Nonprofit Role in Health Care, 28 Nonprofit and Voluntary Sector Q. 18, 24 (1999)CrossRefGoogle Scholar (“Pure charity care is the most unambiguous measure of charity care, yet it is likely to understate true charity care. Hospitals often subsidize health care for the medically indigent indirectly. For example, hospitals deliver services with the knowledge that some patients may not be able to afford the full costs of health care. In the financial statement, such subsidies are termed bad debt. Moreover, it has been argued that many proprietary hospitals are reluctant to admit to charity care and thus may record such care as bad debts. A disadvantage of recording bad debt as a component of charity care, of course, is that it may also reflect bad management practices. The dilemma for researchers is discerning to what extent bad debt reflects poor management practices and to what extent it reflects charity care.”). See also Hellinger, Fred Joseph, Tax-Exempt Hospitals and Community Benefits: A Review of State Reporting Requirements, 34 J. Health Pol'y & L. 37 (2009).CrossRefGoogle ScholarPubMed

108 Carol K. Kane, The Impact of EMTALA on Physician Practices, http://www.acep.org/uploadedFiles/ACEP/newsroom/NewsMediaResources/StatisticsData/Impact%20of%20EMTALA%20on%20Physician%20Practices(1).pdf [https://perma.cc/7GXW-AF55]. To be sure, physicians are not the best source for this kind of data, particularly if they are hospital employees rather than independent contractor physicians.

109 Hsia, Renee Y. et al., Factors Associated with Closures of Emergency Departments in the United States, 19 JAMA 1978, 1980 (2011).Google Scholar

110 Janet Rehnquist, Dep't Health & Hum. Servs., Trends in Urban Hospital Closure 1990-2000 5 (2003), oig.hhs.gov/oei/reports/oei-04-02-00611.pdf [https://perma.cc/GD79-WFTJ]. This trend of hospital closings has been happening for decades. See Sager, Alan, Why Urban Voluntary Hospitals Close, 18 Health Servs. Res. 451 (1983).Google Scholar

111 See Bazzoli, Gloria J. et al., The Effects of Safety Net Hospital Closures and Conversions on Patient Travel Distance to Hospital Services, 47 Health Servs. Res. 129 (2012)CrossRefGoogle ScholarPubMed; Buchmueller, Thomas C., How Far to the Hospital? The Effect of Hospital Closures on Access to Care, 25 J. Health Econ. 740 (2006)CrossRefGoogle ScholarPubMed; Hsia, Renee Yuen-Jan, & Shen, Yu-Chu, Rising Closures of Hospital Trauma Centers Disproportionately Burden Vulnerable Populations, 30 Health Aff. 1912 (2011).CrossRefGoogle ScholarPubMed

112 See Lara-Millan, Armando, Public Emergency Room Overcrowding in the Era of Mass Imprisonment, 79 Am. Soc. Rev. 866, 873 (2014)CrossRefGoogle Scholar (describing the overlapping relationship and logics of criminal justice bureaucracies and emergency rooms).

113 Hermer, Laura D., The Scapegoat: EMTALA and Emergency Department Overcrowding, 14 J.L. & Pol'y 695, 723 (2006).Google Scholar

114 Id.

115 Aaron Carroll, Why Emergency Rooms Don't Close the Health Care Gap, CNN, (May 7, 2012), http://www.cnn.com/2012/05/07/opinion/carroll-emergency-rooms/ [http://perma.cc/95EP-8LA2].

116 Elizabeth Warren et al., Medical Problems and Bankruptcy Filings, in Norton's Bankruptcy Law Adviser (2000).

117 Koch, Thomas G., Bankruptcy, Medical Insurance, and a Law with Unintended Consequences, 23 Health Econ. 1326 (2014).CrossRefGoogle Scholar

118 The Access Project, Paying for Health Care When You're Uninsured: How Much Support Does the Safety Net Offer? 10 (2003), http://www.scha.org/tools/files/paying-for-healthcare-when-youreuninsuredhow-much-support-does-safety-net-offertap0103.pdf [https://perma.cc/9RT6-HDQC].

119 Michelle T. Doty et al., Seeing Red: Americans Driven into Debt by Medical Bills: Results from a National Survey, The Commonwealth Fund (Aug. 2005), www.commonwealthfund.org/usr_doc/837_Doty_seeing_red_medical_debt.pdf?section=4039 [https://perma.cc/RGY7-KTSE].

120 See Kizzire v. Baptist Health Sys., Inc., 343 F.Supp.2d 1074, 1075 (N.D. Ala. 2004) (economic injuries suffered by uninsured patients as result of hospital's alleged violations of EMTALA were not “personal injuries” under Alabama law, and thus were not compensable damages under civil enforcement provision of EMTALA); Sabeta v. Baptist Hosp. of Miami, Inc., 410 F.Supp.2d 1224, (S.D. Fla. 2005) (stating EMTALA does not cover the “economic injury and other damages” that would emerge from the defendant's aggressive pursuit of medical expenses); Burton v. William Beaumont Hosp., 347 F. Supp. 2d 486 (E.D. Mich. 2004) (hospital which sought to collect its own debts from patients was not “debt collector,” and not subject to Fair Debt Collection Practices Act (FDCPA) provision prohibiting misrepresentation of character, amount, or legal status of debt, where hospital did not attempt to collect debts in any name other than its own); Grant v. Trinity Health-Michigan, 390 F. Supp. 2d 643 (E.D. Mich. 2005) (hospital that attempted to collect a patient's debt was not “bill collector” under a Fair Debt Collection Practices Act (FDCPA) claim because it sought to collect what was owed to the hospital, rather than to another).

121 Connecticut Center for a New Economy, Uncharitable Care: Yale-New Haven Hospital's Credit and Collection, 3 (2003).

122 Id.

123 Id.

124 Id.

125 Id.

126 Id.

127 Doty et al, supra note 119.

128 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, (1986).

129 See Hoffman and Annas, supra note 15.

130 Congressional Budget Office, The Impact of Unauthorized Immigrants on the Budgets of State and Local Governments (2007), https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/12-6-immigration.pdf [https://perma.cc/55BK-JAWS].

131 Friedman, supra note 45.

132 Cosman, Madeleine Pelner, Illegal Aliens and American Medicine, 10 J. Am. Physicians & Surgeons 6, 7 (2005).Google Scholar See also Federation for American Immigration Reform, The Sinking Lifeboat: Uncontrolled Immigration & the U.S. Health Care System (2004); Michelle Malkin, America: Medical Welcome Mat To The World, VDARE (Feb. 20, 2003), www.vdare.com/articles/america-medical-welcome-mat-to-the-world [http://perma.cc/9Q7U-8RJ5] (“The costs of illegal alien health care are crippling hospitals across the country … dozens of hospitals in the 28 counties along the U.S.-Mexico border in Texas, New Mexico, Arizona and California have either closed their doors or face bankruptcy because of losses caused by uncompensated care given to illegal immigrants.”); Miller, John J., Caring for Illegals, Losing Their Shirts: The Effect of the Wave on Border-State Medical Services, Nat. Rev. 24 (2003).Google Scholar

133 Cosman, supra note 132.

134 See Hoffman and Annas, supra note 15. In fact, research has shown that the 1996 welfare reform, which barred legal immigrants who entered the United States after August 1996 from receiving Medicaid for five years after immigration, had the unintended effect deterring eligible pre-1996 immigrants from enrolling in Medicaid, which suggests that federal laws limiting Medicaid eligibility for one subgroup of immigrants can have broader impacts. See Kandula, Namratha R, et. al, The Unintended Impact of Welfare Reform on the Medicaid Enrollment of Eligible Immigrants, 5 Health Serv. Res. 1509 (2004).CrossRefGoogle Scholar

135 See generally Michael B. Katz, The Undeserving Poor: America's Enduring Confrontation with Poverty (1989). For a more recent take see Khiara M. Bridges, The Poverty of Privacy Rights 37-64 (2017).

136 See Jonathan Engel, Poor People's Medicine: Medicaid and American Charity Care Since 1965 (2006); Huberfeld, Nicole et al., Plunging into Endless Difficulties: Medicaid and Coercion in National Federation of Independent Business v. Sebelius, 93 B.U. L. Rev. 1, 13-17 (2013)Google Scholar; Tanenbaum, Sandra J., Medicaid Eligibility Policy in the 1980s: Medical Utilitarianism and the “Deserving” Poor, 20 J. Health Pol., Pol'y & L. 933, 933-34 (1995).CrossRefGoogle ScholarPubMed

137 See Martin Gilens, Why Americans Hate Welfare: Race, Media, and the Politics of Antipoverty Policy (1999).

138 For different historical takes on the development of American health care and health insurance see generally Stuart Altman & David Shactman, Power, Politics, and Universal Health Care: The Inside Story of a Century-Long Battle (2011); John C. Burnham, Health Care in America: A History (2015); Daniel E. Dawes, 150 Years of Obamacare (2016); Colin Gordon, Dead on Arrival: The Politics of Health Care in Twentieth-Century America (2004); Beatrix Hoffman, The Wages of Sickness: The Politics of Health Insurance in Progressive America (2001); John E. Murray, Origins of American Health Insurance: A History of Industrial Sickness Funds (2007); Paul Starr, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry (1984).

139 See, e.g., Fuchs, Victor R. & Emanuel, Ezekiel J., Health Care Reform: Why? What? When?, 24 Health Aff. 1399, 1402-04 (2005)CrossRefGoogle ScholarPubMed; Himmelstein, David U. & Woolhandler, Steffie, National Health Insurance or Incremental Reform: Aim High, or at Our Feet? 98 Am. J. Pub. Health 102, 102-03 (2008)CrossRefGoogle ScholarPubMed; Levey, Samuel & Hill, James, Universal Health Insurance: Incrementalism or Comprehensive Reform?, 3 Stan. L. & Pol'y Rev. 189, 192-93 (1991).Google Scholar

140 See e.g., Monte M. Poen, Harry S. Truman Versus the Medical Lobby: The Genesis of Medicare (1996); Bloche, M. Gregg & Studdert, David M., A Quiet Revolution: Law as an Agent of Health System Change 23 Health Aff. 29 (2004)CrossRefGoogle Scholar; Dolgin, Janet L. & Dieterich, Katherine R., Social and Legal Debate About the Affordable Care Act, 80 UMKC L. Rev. 45 (2011)Google Scholar; Quadagno, Jill, Why the United States Has No Health Insurance: Stakeholder Mobilization Against the Welfare State, 1945–1996, 45 J. Health & Soc. Behav. 25 (2004).Google Scholar

141 See President Barack Obama, Remarks by the President to a Joint Session of Congress on Health Care (Sept. 9, 2009), https://obamawhitehouse.archives.gov/the-press-office/remarks-president-a-joint-session-congress-health-care [http://perma.cc/LSB2-Z648] (“[T]here's the problem of rising cost. We spend one and a half times more per person on health care than any other country, but we aren't any healthier for it. This is one of the reasons that insurance premiums have gone up three times faster than wages. It's why so many employers – especially small businesses – are forcing their employees to pay more for insurance, or are dropping their coverage entirely. It's why so many aspiring entrepreneurs cannot afford to open a business in the first place, and why American businesses that compete internationally—like our automakers—are at a huge disadvantageous health care system is placing an unsustainable burden on taxpayers. When health care costs grow at the rate they have, it puts greater pressure on programs like Medicare and Medicaid. If we do nothing to slow these skyrocketing costs, we will eventually be spending more on Medicare and Medicaid than every other government program combined…our health care system is placing an unsustainable burden on taxpayers. When health care costs grow at the rate they have, it puts greater pressure on programs like Medicare and Medicaid. If we do nothing to slow these skyrocketing costs, we will eventually be spending more on Medicare and Medicaid than every other government program combined.”).

142 For example, racial disparities in health have been well-documented. See generally Inst. of Med., Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (2003); Timothy Waidmann, Estimating the Cost of Racial and Ethnic Health Disparities (2009); Williams, David R. & Sternthal, Michelle, Understanding Racial-Ethnic Disparities in Health: Sociological Contributions, 51 J. Health & Soc. Behav. S15 (2010).CrossRefGoogle ScholarPubMed The creation of section 1557 of the ACA alludes to some of these disparate outcomes and creates a new anti-discrimination provision that prohibits discrimination based on race, color, sec national origin, age, or disability. See Watson, Sidney D., Section 1557 of the Affordable Care Act: Civil Rights, Health Reform, Race, and Equity, 55 How. L.J. 855 (2012).Google Scholar

143 See Rockefeller, John D. IV, Health and the Underserved: Policy Decisions, 3 Stan. L. & Pol'y Rev. 27, 28 (1991)Google Scholar (“[W]e rank a dismal 22nd in infant mortality, behind countries like spain and singapore …. it is simply immoral that millions of americans can't get health care. it is also financially insane. the gaps in coverage are fueling health care inflation and costing billions of dollars—in emergency care that could have been prevented, in uncompensated care that gets shifted to the cash registers and pocket-books of employers and employees with health insurance, in disability checks and special services for those who could have stayed healthy if they had been treated promptly and properly.”). see also donald L. Barlett & James B. Steele, Critical Condition: How Health Care in American Became Big Business—And Bad Medicine (2005); T.R. Reid, The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care (2010); Murray, Christopher J. L., & Frenk, Julio, Ranking 37th—Measuring the Performance of the U.S. Health Care System, 362 New Eng. J. Med. 98 (2010).CrossRefGoogle ScholarPubMed

144 See Fritz Allhoff & Mark Hall, The Affordable Care Act Decision: Philosophical and Legal Implications (2014); Dawes, supra note 138; Barry Furrow et al., Health Law: Materials and Problems (2013); Rosenbaum, Sara, The Patient Protection and Affordable Care Act: Implications for Public Health Policy and Practice, 12 Pub. Health Rep. 130 (2011).CrossRefGoogle Scholar

145 42 U.S.C. § 300gg-1(a) (2012).

146 Factors such as age and tobacco use can be considered. See 42 U.S. Code § 300gg(a).

147 President Barack Obama, supra note 141.

148 See, e.g., Smith, Peter J., Federalism, Lochner, and the Individual Mandate, 91 B.U. L. Rev. 1723 (2011)Google Scholar; Somin, Ilya, A Mandate for Mandates: Is the Individual Health Insurance Case a Slippery Slope?, 75 L. & Contemp. Probs. 75 (2012).Google Scholar

149 Hellman, Deborah S., Is Actuarially Fair Insurance Pricing Actually Fair?: A Case Study in Insuring Battered Women, 32 Harv. C.R.-C.L. L. Rev. 355, 397-398 (1997)Google Scholar (describing the relationship between risk rating and domestic violence and explaining how conceptions of actuarial fairness are “sometimes understood as a ‘moral principle: it is fair for insurance prices to reflect actuarially sound predictions of risk for individual insureds. According to this principle, actuarially based pricing is fair, not simply actuarially fair but truly fair … risk rating is fair if low-risk individuals are entitled, morally speaking, to reap all possible benefits of their good health.’”) (citation omitted). On actuarial fairness more generally see Kenneth Abraham, Distributing Risk: Insurance, Legal Theory, and Public Policy (1986); Baker, Tom, Health Insurance, Risk and Responsibility After the Patient Protection and Affordable Care Act, 159 U. Pa. L. Rev. 1577 (2011)Google Scholar; Stone, Deborah A., The Struggle for the Soul of Health Insurance, 18 3. J. Health Pol., Pol'y & L. 287, 290 (1993).CrossRefGoogle ScholarPubMed

150 Crossley, Mary, Discrimination Against the Unhealthy in Health Insurance, 54 U. Kan. L. Rev. 73, 74 (2005).Google Scholar

151 Stone, supra note 149 at 290 (“[T]he private insurance industry, the first line of defense in the U.S. system of mutual aid for sickness, is organized around a principle profoundly antithetical to the idea of mutual aid, and indeed, the growth and survival of the industry depends on its ability to finance health care by charging the sick and to convince the public that ‘each person should pay for his own risk.’”) (citation omitted).

152 President Barack Obama, supra note 141.

153 Baker, supra note 149, at 1602; see also Underhill, Kristen, Paying for Prevention: Challenges to Health Insurance Coverage for Biomedical HIV Prevention in the United States, 38 Am. J.L. & Med. 607, 625 (2012)CrossRefGoogle ScholarPubMed (“The ACA has come closer to embracing the idea that insurance is a means of achieving optimal health, rather than a market mechanism to reduce the risk level or to insulate voluntary purchasers from future losses.”).

154 42 U.S.C. § 1396a (2010).

155 Id. at § 1396a(a)(10(A)(i)(VIII) (extending coverage to all citizens whose income falls below 133% of the federal poverty line).

156 Id. at § 1396c (allowing the executive to withhold all Medicaid payments to a state not in compliance).

157 Id. at § 1396r-4.

158 See Alison Mitchell, Cong. Research Serv., R42865, Medicaid Disproportionate Share Hospital Payments (2016).

159 Disproportionate Share Hospital Allotments, 81 Fed. Reg. 74436 (Oct. 26, 2016).

160 Disproportionate Share Hospital Allotment Reductions, 82 Fed. Reg. 35170 (July 28, 2017).

161 Neuhausen, Katherine, et al., Disproportionate-Share Hospital Payment Reductions May Threaten the Financial Stability of Safety-Net Hospitals, 33 Health Aff. 988, 994 (2014).CrossRefGoogle ScholarPubMed

162 Unlike the majority opinion in the Eleventh Circuit's invalidation of the individual mandate, which had very little to say about emergency care's relationship to the ACA, Judge Stanley Marcus addressed this part of the health world directly. Judge Marcus highlighted health care exceptionalism in the EMTALA context by noting how other sellers in any market place are not required to by law to provide services. He also argued that EMTALA did not emerge out of legislative happenstance, but was a byproduct of an accretion of state anti-dumping laws and judicial decisions that the ACA also sought to address. See Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1258–59 (11th Cir. 2011).

163 Brief for State Respondents on the Minimum Coverage Provision at 49-50, Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (No. 11-398).

164 Id.

165 Id. at 49.

166 Id.

167 Benjamin, Stuart Minor, Bootstrapping, 75 L. & Contemp. Probs. 115, 116 (2012).Google Scholar

168 Id. at 121.

169 Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 593 (2012)

170 Reply Brief for the Department of Health and Human Services at 40, Nat'l Fed'n. of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (No. 11-400).

171 Transcript of Oral Argument at 41, Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (No. 11-393).

172 Id. at 81-84.

173 Id.

174 Id.

175 Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 580 (2012).

176 Id.

177 Morreim, E. H., EMTALA: Medicare's Unconstitutional Condition on Hospitals, 43 Hastings Const. L.Q., 61, 83-84 (2015)Google Scholar (comparing EMTALA and the Court's ruling on the Medicaid expansion and noting “conditions placed on federal spending cross a line when they become leverage to extract concessions that reach beyond the legitimate legislative purpose of the federal program. EMTALA represents just such overreaching, and therefore places an unconstitutional condition on Medicare-contracting hospitals.’”).

178 There is no shortage of work on the politics of this decision. See generally, Randy E. Barnett et al., A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (2013); Daniel Beland, Philip Rocco, Alex Waddan, Obamacare Wars: Federalism, State Politics, and the Affordable Care Act (2016); Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare (2013); Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (2013).

179 Sebelius, 567 U.S. at 699-700 (Scalia, J., dissenting).

180 Id. at 699.

181 Id. at 697.

182 See June Gibbs Brown, Dep't of Health & Hum. Servs., Trends in Urban Hospital Closure 1987-1993 (1995); Rehnquist, supra note 110; Randall R. Bovbjerg, Jill A. Marsteller & Frank C. Ullman, Health Care for the Poor and Uninsured After a Public Hospital's Closure or Conversion (2000); Clark, Brietta R., Hospital Flight from Minority Communities: How Our Existing Civil Rights Framework Fosters Racial Inequality in Healthcare, 9 DePaul J. Health Care L. 1023 (2005): 1023Google Scholar; Ko, Michelle et al., Residential Segregation and the Survival of US Urban Public Hospitals 71 Med. Care Res. & Rev. 243 (2014)CrossRefGoogle Scholar; Rice, Mitchell F., Inner-City Hospital Closures/Relocations: Race, Income Status, And Legal Issues, 24 Soc. Sci. & Med. 889 (1987)CrossRefGoogle ScholarPubMed; Sager, supra note 110.

183 Sebelius, 567 U.S. at 547.

184 See generally Neuhausen, et al., supra note 161.

185 Scott M. Stringer, Office of the New York City Comptroller, Holes in the Safety Net: Obamacare and the Future of New York City's Health & Hospitals Corporation 4 (2015), http://comptroller.nyc.gov/wp-content/uploads/documents/Holes_in_the_Safety_Net.pdf [https://perma.cc/Q8A5-VW4X].

186 Id.

187 New York City Dep't of Health and Mental Hygiene, Uninsured Adults in New York City (2014), https://www1.nyc.gov/assets/doh/downloads/pdf/epi/databrief43.pdf [https://perma.cc/KA9C-68Y7].

188 Neuhausen, et al., supra note 161.

189 Paul Fronstin, California HealthCare Foundation, California's Uninsured: By the Numbers 5 (2013), http://www.chcf.org/~/media/MEDIA%20LIBRARY%20Files/PDF/PDF%20C/PDF%20CaliforniaUninsured2013.pdf [https://perma.cc/HYB5-HAWZ].

190 Max Blau, This Georgia Hospital Shows Why Rejecting Medicaid Isn't Easy, Wash. Post (June 26, 2013), http://www.washingtonpost.com/news/wonkblog/wp/2013/06/26/this-georgia-hospital-shows-why-rejecting-medicaid-isnt-easy/.

191 Edgar Walters, With Hospital Funds in Question, Abbott Holds Firm Against Medicaid Expansion, Tex. Trib. (Apr. 20, 2015), http://www.texastribune.org/2015/04/20/hospital-funds-question-abbott-holds-firm-against-/ [http://perma.cc/77TQ-3QMW].

192 Id.

193 See Banks, Antione J., The Public's Anger: White Racial Attitudes and Opinions Toward Health Care Reform, 36 Pol. Behav. 493 (2014)CrossRefGoogle Scholar (finding that “anger uniquely pushes racial conservatives to be more opposing of health care reform while it triggers more support among racial liberals.”); Knoll, Benjamin R. & Shewmaker, Jordan. ‘Simply un-American’: Nativism and Support for Health Care Reform, 37 Pol. Behav. 87 (2015)CrossRefGoogle Scholar (analyzing 2011 public opinion data and demonstrating that “nativism was an independent and significant predictor of opposition to health care reform and that this effect held for both Republicans as well as Democrats, although the relationship is stronger for Republicans.”); Knowles, Eric. D. et al., Racial Prejudice Predicts Opposition to Obama and His Health Care Reform Plan, 46 J. Experimental Soc. Psychol. 420, 420 (2010)CrossRefGoogle Scholar (“In an experiment, the association between implicit prejudice and opposition to health care reform replicated when the plan was attributed to Obama, but not to Bill Clinton—suggesting that individuals high in anti-Black prejudice tended to oppose Obama at least in part because they dislike him as a Black person. In sum, our data support the notion that racial prejudice is one factor driving opposition to Obama and his policies.”); Lanford, Daniel & Quadagno, Jill, Implementing Obamacare: The Politics of Medicaid Expansion Under the Affordable Care Act of 2010, 59 Soc. Persp., 619, 623 (2015)CrossRefGoogle Scholar (highlighting the role of racial resentment in opposition to the ACA); Maxwell, Angie & Shields, Todd, The Fate of Obamacare: Racial Resentment, Ethnocentrism and Attitudes about Healthcare Reform, 6 Race & SOC. PROBS. 293 (2014)CrossRefGoogle Scholar (finding that racial attitudes and Ethnocentrism continue to play a role in both support and opposition to health care reform); Tesler, Michael, The Spillover of Racialization into Health Care: How President Obama Polarized Public Opinion by Racial Attitudes and Race, 56 Am. J. Pol. Sci. 690 (2012)CrossRefGoogle Scholar (finding that “racial attitudes had a significantly larger impact on health care opinions in fall 2009 than they had in cross-sectional surveys from the past two decades and in panel data collected before Obama became the face of the policy”, and that “health care policies were significantly more racialized when attributed to President Obama than they were when these same proposals were framed as President Clinton's 1993 reform efforts”).

194 Is Medicaid Expansion Good for the States?, U.S. News (July 24. 2012), http://www.usnews.com/debate-club/is-medicaid-expansion-good-for-the-states [http://perma.cc/VPN2-2FEN].

195 Rachel Nardin et al., The Uninsured After Implementation of the Affordable Care Act: A Demographic and Geographic Analysis, Health Aff. Blog (June 6, 2013), healthaffairs.org/blog/2013/06/06/the-uninsured-after-implementation-of-the-affordable-care-act-a-demographic-and-geographic-analysis/ [http://perma.cc/9CVF-UBNP].

196 Stephanie Armour, U.S. Emergency-Room Visits Keep Climbing, Wall St. J. (May 4, 2015), www.wsj.com/articles/u-s-emergency-room-visits-keep-climbing-1430712061; but see Rhodes, Karin V., et al. Access to Primary Care Appointments Following 2014 Insurance Expansions, 15 Annals Fam. Med. 107 (2017)CrossRefGoogle ScholarPubMed (finding that there has not been a decrease in new-patient appointment availability).

197 Id.; Laura Ungar & Jayne O'Donnell, Contrary to Goals, ER Visits Rise Under Obamacare, USA Today (May 4, 2015), http://www.usatoday.com/story/news/nation/2015/05/04/emergency-room-visits-rise-under-affordable-care-act/26625571/ [http://perma.cc/TE5N-XHVK].

198 2015 ACEP Poll Affordable Care Act Research Results, Am. Coll. of Emergency Physicians (Mktg. Gen. Inc., Alexandria, VA.), March 2015, at 9.

199 Id. at 10.

200 Study Shows ER Visits Up Under ACA, Obamacare Facts (May 5, 2015), obamacarefacts.com/2015/05/05/study-shows-er-visits-up-under-aca/ [http://perma.cc/SL7X-5D3Q].

201 Out of Pocket Maximum Limit, Healthcare.gov, https://www.healthcare.gov/glossary/out-of-pocket-maximum-limit/ [http://perma.cc/R5CX-Z67H] (last visited Sept. 14, 2017).

202 See Himmelstein, David U. et al., Medical Bankruptcy in the United States, 2007: Results of a National Study, 122 Am. J. Med. 741, 744 (2009)CrossRefGoogle ScholarPubMed (Out-of-pocket medical costs averaged $17,943 for all medically bankrupt families: $26,971 for uninsured patients, $17,749 for those with private insurance at the outset, $14,633 for those with Medicaid, $12,021 for those with Medicare, and $6545 for those with Veterans Affairs/military coverage. For patients who initially had private coverage but lost it, the family's out-of-pocket expenses averaged $22,568. Among common diagnoses, nonstroke neurologic illnesses, such as multiple sclerosis, were associated with the highest out-of-pocket expenditures (mean $34,167), followed by diabetes ($26,971), injuries ($25,096), stroke ($23,380), mental illnesses ($23,178), and heart disease ($21,955)).

203 Michael Karpman & Sharon K. Long, 9.4 Million Fewer Families Are Having Problems Paying Medical Bills, Health Reform Monitoring Survey (May 21, 2015), http://hrms.urban.org/briefs/9-4-Million-Fewer-Families-Are-Having-Problems-Paying-Medical-Bills.html [https://perma.cc/F4NU-8QPR].

204 Rachel Garfield et al., The Coverage Gap: Uninsured Poor Adults in States that Do Not Expand Medicaid – An Update, Kaiser Fam. Found. (Apr. 17, 2015), http://kff.org/health-reform/issue-brief/the-coverage-gapuninsured-poor-adults-in-states-that-do-not-expand-medicaid-an-update/ [http://perma.cc/ZT99-S3ZV].

205 Jeffrey S. Passel & D'Vera Cohn, Unauthorized Immigrant Population: National and State Trends, Pew Hispanic Center (Feb. 1, 2011), http://www.pewhispanic.org/2011/02/01/unauthorized-immigrant-population-brnational-and-state-trends-2010/ [https://perma.cc/S5JF-9D98].

206 Id.

207 Id.

208 Elisabeth Rosenthal, After Surgery, Surprise $117,000 Medical Bill from Doctor He Didn't Know. N.Y. Times (Sept. 20, 2014), http://www.nytimes.com/2014/09/21/us/drive-by-doctoring-surprise-medical-bills.html; Michelle Andrews, Beware of Higher Charges if You Go to an Out-of-Network Emergency Room, Kaiser Health News (Aug. 29, 2014), khn.org/news/beware-of-higher-charges-if-you-go-to-an-out-of-network-emergency-room/ [https://perma.cc/3ERY-S6GF].

209 Andrews, supra note 209.

210 Tara Siegel Bernard, Out of Network, Not by Choice, and Facing Huge Health Bills, N.Y. Times (Oct. 13, 2013), http://www.nytimes.com/2013/10/19/your-money/out-of-network-not-by-choice-and-facing-huge-health-bills.html.

211 Lisa Zamosky, Out-of-Network Costs Lurk Even at In-Network Hospitals, L.A. Times (July 17, 2015), http://www.latimes.com/business/la-fi-healthcare-watch-20150717-story.html [http://perma.cc/7QBJ-Y4C4].

212 Id.

213 Id.

214 Id.

215 Rosenthal, supra, note 209.

216 O'Neill, Christine, Medical Balance Billing: Inadequate Regulations, Increasing Consumer Outrage, and Competing Economic Interests–How Do We Fix It?, 8 Health L. Outlook 1, 12 (2015).Google Scholar

217 Karen Pollitz, Surprise Medical Bills, Kaiser Fam. Found. (Mar. 17, 2016), http://www.kff.org/private-insurance/issue-brief/surprise-medical-bills/.

218 Bernard, supra, note 211.

219 Loren Adler, et al., Stopping Surprise Medical Bills: Federal Action is Needed, Health Aff. Blog (Feb. 1, 2017), healthaffairs.org/blog/2017/02/01/stopping-surprise-medical-bills-federal-action-is-needed/ [http://perma.cc/UA47-6E9W].

220 Id. Conditioning Medicare in this instance could be tricky since the insurance company would be the entity being regulated and not the hospital.

221 Katz, supra note 135.

222 Id.

223 Mimi Abramovitz, Regulating the Lives of Women: Social Welfare Policy from Colonial Times to the Present (1996); Linda Gordon, Pitied but not Entitled: Single Mothers and the History of Welfare, 1890-1935 (1994); Reese, supra note 23.

224 Gilens, supra note 137; Ange-Marie Hancock, The Politics of Disgust: The Public Identity of the Welfare Queen (2004).

225 Erin McPike, U.S. Presidential Contender Donald Trump Vows to Fix Veterans' Care, Reuters (Sept. 16, 2015), www.reuters.com/article/2015/09/16/us-usa-election-trump-idUSKCN0RG0AT20150916 [http://perma.cc/LV76-5N4V].

226 Ed O'Keefe & John Wagner, Bernie Sanders Tells Latino Lawmakers: Undocumented Immigrants Should Benefit from Obamacare, Wash. Post (Oct. 1, 2015), http://www.washingtonpost.com/news/post-politics/wp/2015/10/01/bernie-sanders-tells-latino-lawmakers-undocumented-immigrants-should-benefit-from-obamacare/.

227 Ian Haney LÓpez, Dog Whistle Politics: How Coded Racial Appeals have Reinvented Racism and Wrecked the Middle Class (2014).

228 Matthew, Dayna Bowen, The Social Psychology of Limiting Healthcare Benefits for Undocumented Immigrants—Moving Beyond Race, Class, and Nativism, 10 Hous. J. Health L. & Pol'y 201, 205 (2010).Google Scholar

229 Id.

230 See generally Alyshia GÁlvez, Patient Citizens, Immigrant Mothers: Mexican Women, Public Prenatal Care, and the Birth Weight Paradox (Janet Golden et al. eds., 2011) (describing how Mexican women have better pregnancy-related outcomes before their arrival to the United States and how their contact with the American medical system leads to a deterioration of their health).

231 Matthews, supra note 229.

232 Diamond, Michelle Nicole, Legal Triage for Healthcare Reform: The Conflict Between the ACA and EMTALA, 43 Colum. Hum. Rts. L. Rev. 255, 259 (2011).Google Scholar

233 Erika Martin & Courtney Burke, Health Reform: What Is the Future for Undocumented Aliens?, Health Aff. Blog (Oct. 15, 2010), healthaffairs.org/blog/2010/10/15/health-reform-what-is-the-future-for-undocumented-aliens/ [http://perma.cc/N2XX-K3MG].

234 Pollin, Robert, Economic Prospects: Can We Please Stop Blaming Immigrants?, 20 New Lab. F. 86 (2011)CrossRefGoogle Scholar; Jason Riley, The Mythical Connection Between Immigrants and Crime, Wall St. J. (July 14, 2015), www.wsj.com/articles/the-mythical-connection-between-immigrants-and-crime-1436916798.

235 Emergency Medicaid is the exception. See 42 C.F.R § 440.255 (2009).

236 For example, blacks comprise 23-30 percent of the populations of non-expanding states such as North Carolina, South Carolina, Georgia, Florida, Mississippi, Texas, Louisiana, Missouri. They also comprise 15-22 percent of the population in non-expansion states such as Virginia, Tennessee, Alabama, Wisconsin, Kansas and Oklahoma. Philethea Duckett & Samantha Artiga, Health Coverage for the Black Population Today and Under the Affordable Care Act, Kaiser Fam. Found. (July 24, 2013), http://kff.org/disparities-policy/fact-sheet/health-coverage-for-the-black-population-today-and-under-the-affordable-care-act/ [https://perma.cc/G8CG-TNT9].

237 Michael Ollove, Not Expanding Medicaid Can Cost Local Taxpayers, Huffington Post (June 24, 2015), www.huffingtonpost.com/2015/06/24/medicaid-expansion_n_7654048.html [http://perma.cc/9PKF-CEQW].

238 Id.

239 Alexander Saxton, The Indispensable Enemy: Labor and the Anti-Chinese Movement in California (1975).

240 The American Health Care Reform Act of 2017, H.R. 277, 115th Cong. (2017).

241 Better Care Reconciliation Act of 2017, H.R. 1628, 115th Cong. (2017).

242 Opposition to both bills is diffuse even amongst conservatives. The influential conservative National Review summarily referred to the bill as “a disappointment” and “weak tea.” A Disappointing Start, Nat. Rev. (Mar. 7, 2017), www.nationalreview.com/article/445558/obamacare-replacement-republican-plan-house-representatives-disappointing [http://perma.cc/QSZ8-TKWY]; David Harsanyi, The GOP Repeal Plan Is Pretty Bad Read, Nat. Rev. (Mar. 10, 2017), http://www.nationalreview.com/article/445658/obamacare-repeal-gop-blunders [http://perma.cc/HEQ8-N5Z6]. Some Republican Senators do not support the Senate bill because they believe that the bill is too harsh or to permissive. See Margaret Hartmann, The Senators Who May Kill the GOP Health Bill, N.Y. Mag. (June 26, 2017), nymag.com/daily/intelligencer/2017/06/senators-oppose-gop-health-bill.html [http://perma.cc/9HU8-K4J2].

243 Tom Brune, GOP Health Plan Advances; Schumer Calls It ‘Less for More’, Newsday (Mar. 9, 2017) www.newsday.com/news/nation/gop-s-obamacare-overhaul-clears-2nd-committee-1.13231428 [http://perma.cc/7MJX-QNUR].

244 Sy Mukherjee, These 3 Powerful Groups Are Slamming the GOP's Obamacare Replacement Plan, Fortune (Mar. 8, 2017), fortune.com/2017/03/08/gop-healthcare-plan-aarp-ama-aha/ [https://perma.cc/H5TY-3Y8D].

245 Daniel Chaitin, AARP Warns Senators Against Supporting GOP Healthcare Bill, Wash. Exam. (June 22, 2017), www.washingtonexaminer.com/aarp-warns-senators-against-supporting-gop-healthcare-bill/article/2626877 [http://perma.cc/9A9T-ACVS]; Jayne O'Donnell, Nearly All Hospital Groups Come out Against GOP Obamacare Replacement, USA Today (Mar. 8. 2017), www.usatoday.com/story/news/politics/2017/03/08/all-hospital-groups-come-out-against-gop-obamacare-replacement/98910122/ [http://perma.cc/V5KF-7WHL]; Dylan Stafford, American Medical Association Joins Other Major Groups in Opposing Senate Health Bill, CNN (June 26, 2017), www.cnn.com/2017/06/26/politics/ama-opposes-senate-health-bill/index.html [http://perma.cc/6PWP-PPC8].

246 Mukherjee, supra note 244.

247 H.R. 1628.

248 H.R. 277.

249 Id.

250 H.R. 1628, American Health Care Act of 2017, Cong. Budget Off. (May 24, 2017), https://www.cbo.gov/publication/52752 [https://perma.cc/6PMW-8NGM].

251 H.R. 1628, Better Care Reconciliation Act of 2017, Cong. Budget Off. (June 26, 2017), https://www.cbo.gov/publication/52849 [https://perma.cc/2W4J-HAJ4].

252 For helpful discussions on the welfare-like approaches to Medicaid see Hermer, Laura, On the Expansion of “Health” and “Welfare” Under Medicaid, 9 St. Louis U. J. Health L. & Pol'y 235 (2016)Google Scholar; Laura Hermer, Seema Verma's Medicaid Overhaul Should Not be the National Model, STAT (Feb. 15, 2017), https://www.statnews.com/2017/02/15/verma-misguided-vision-medicaid/ [http://perma.cc/9GGZ-FWP5].

253 Watson, Sidney D., Out of the Black Box and into the Light: Using Section 1115 Medicaid Waivers to Implement the Affordable Care Act's Medicaid Expansion, 15 Yale J. Health Pol'y L. & Ethics 213, 227-228 (2015).Google ScholarPubMed

254 A. Pawlowski, Focus on Women as Opioid-Related Hospital Stays, ER Visits Surge, NBC News (June 20, 2017), www.nbcnews.com/health/health-news/focus-women-opioid-related-hospital-stays-er-visits-surge-n774801 [http://perma.cc/N7RH-TGQR]; Jamila Michener and Julilly Kohler-Hausmann, Why We Shouldn't Drug Test Poor People, N.Y. Times (June 28, 2017), https://www.nytimes.com/2017/06/28/opinion/drug-test-poor-medicaid-walker-trump.html.

255 Player, Candice T., Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis, 40 Am. J.L. & Med. 26, 75 (2014).CrossRefGoogle ScholarPubMed

256 Empowering Patients First Act of 2015, H.R. 2300, 114th Congress (2015).

257 Trump Administration Priorities Include Reducing Government's Role in Healthcare, MBU Times (Jan. 2017), http://www.mbuinc.com/www/upload/Newsletter%20January%202017%20Repeal%20ACA%20Data%20Breach.pdf [https://perma.cc/SPW8-X8EB].

258 H.R. 2300.

259 Gary Claxton et al., Pre-Existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA, Kaiser Fam. Found. (2016), kff.org/health-reform/issue-brief/pre-existing-conditions-and-medical-underwriting-in-the-individual-insurance-market-prior-to-the-aca/ [http://perma.cc/JJA2-9XAX].

260 Karen Pollitz, High-Risk Pools for Uninsurable Individuals, Kaiser Fam. Found. (Feb. 22. 2017), kff.org/health-reform/issue-brief/high-risk-pools-for-uninsurable-individuals/ [http://perma.cc/XL7A-9APG].

261 See Berkely Lovelace Jr., HHS Secretary Price: Senate Must Aim for ‘Lowest Common Denominator’ to Keep Obamacare Repeal Alive, CNBC (July 26, 2017), https://www.cnbc.com/2017/07/26/hhs-secretary-topm-price-senate-must-aim-for-lowest-common-denominator-on-health-care.html [https://perma.cc/5U5P-NPU3]; Thomas E. Price, M.D., HHS.gov (May 9, 2017), https://www.hhs.gov/about/leadership/secretary/thomas-e-price-md/index.html [http://perma.cc/68VR-BBGG].

262 H.R. 2300.

263 Jonathan Martin, With Coverage in Peril and Obama Gone, Health Law's Critics Go Quiet, N.Y. Times (Feb. 16, 2017), https://www.nytimes.com/2017/02/19/us/politics/affordable-care-act-critics.html.

264 Paul Ryan, A Better Way: Our Vision for a Confident America (2016), https://abetterway.speaker.gov/_assets/pdf/ABetterWay-HealthCare-PolicyPaper.pdf [https://perma.cc/4Y8CQEKH]. The Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Act, which was proposed by Representative Fred Upton and Senators Richard Barr and Orrin Hatch is quite similar to Ryan's plan, but offers higher subsidies to poor people. It also created a “default” health insurance option that states can enroll individuals in if they do not maintain continuous coverage.

265 Id. at 10.

266 Id. at 35.

267 Id. at 35.

268 Id.

269 Id.

270 Virgil Dickson, California Will Get Nearly $2 Billion in Uncompensated-Care Funds, Modern Healthcare (July 19, 2016), http://www.modernhealthcare.com/article/20160719/NEWS/160719882 [http://perma.cc/6PU6-D7F7]; Virgil Dickson, Texas Hospitals Face $8.2 Billion in Uncompensated Care Costs, Modern Healthcare (Sept. 12, 2016), www.modernhealthcare.com/article/20160912/NEWS/160919990 [http://perma.cc/NJ8F-PLUP].

271 Lambrew, Jeanne M., Making Medicaid a Block Grant Program: An Analysis of the Implications of Past Proposals, 83 Milbank Q. 41 (2005)CrossRefGoogle ScholarPubMed (describing previous Medicaid block-granting proposals); Edwin Park & Matt Broaddus, Medicaid Block Grant Would Shift Financial Risks and Costs to States: States Would Bear Impact of Recessions, Higher Medical Costs, Ctr. on Budget and Pol'y Priorities (Feb. 23, 2011), www.cbpp.org/sites/default/files/atoms/files/2-23-11health.pdf [https://perma.cc/9HL8-2W2K]; Edwin Park, Medicaid Block Grant Would Slash Federal Funding, Shift Costs to States, and Leave Millions More Uninsured, Ctr. on Budget and Pol'y Priorities (Nov. 30, 2016), www.cbpp.org/research/health/medicaid-block-grant-would-slash-federal-funding-shift-costs-to-states-and-leave [http://perma.cc/B8SF-9WUW].

272 The Obamacare Replacement Act, S. 222, 115th Cong. §§ 101-103 (2017).

273 Bob Bryan, Rand Paul Just Introduced His Obamacare Replacement Act, Bus. Insider (Jan. 25, 2017, 12:52 PM), http://www.businessinsider.com/rand-paul-introduced-obamacare-replacement-act-2017-1 [http://perma.cc/B2T2-HZYH].

274 Id.

275 Obamacare Replacement Act, S. 222 § 232.

276 Id. at § 501.

277 Huberfeld, Nicole, Federalizing Medicaid, 14 U. Pa. J. Const. L. 431, 472 (2011).Google Scholar

278 Patient Freedom Act, S. 191, 115th Cong. (2017).

279 Merrill Goozner, Editorial, The False Promise of State-Based Health Insurance Markets Reform, Mod. Healthcare (Feb. 4, 2017), http://www.modernhealthcare.com/article/20170204/MAGAZINE/302049986 [http://perma.cc/S4AL-MVYC].

280 Patient Freedom Act, S. 191.

281 Bill Cassidy, Patient Freedom Act, Cassidy Senate (last visited Sept. 18, 2017), https://www.cassidy.senate.gov/imo/media/doc/2.14%20One%20Pager.pdf [https://perma.cc/AYA7-YPA8].

282 Id.

283 Id.

284 Patient Freedom Act, S. 191 § 121.

285 Helmchen, Lorens A. et al., Health Savings Accounts: Growth Concentrated Among High-Income Households and Large Employers, 34 Health Aff. 1594, 1595-97 (2015)CrossRefGoogle ScholarPubMed; What is a Health Savings Account?, Ctr. on Budget and Pol'y Priorities (Jan. 25, 2017), http://www.cbpp.org/research/health/what-is-a-health-savings-account [http://perma.cc/5QPV-2SL6].

286 Ezra Klein, Repeal EMTALA!, Wash. Post (Jan. 27, 2011), http://voices.washingtonpost.com/ezra-klein/2011/01/repeal_emtala.html [http://perma.cc/SVB7-8623].

287 Epstein, supra note 64, at 103.

288 Klock, supra note 70, at 369.

289 Dan Mangan, Expand Medicaid and Obamacare will Cost Less, Federal Government Says, CNBC (Aug. 25, 2016, 3:28 PM), https://www.cnbc.com/2016/08/25/expand-medicaid-and-obamacare-will-cost-less-federal-government-says.html [http://perma.cc/YNK6-EZ83].

290 See Robert Kaiser, Act of Congress: How America's Essential Institution Works, and How It Doesn't (2013).

291 Super, David A., Rethinking Fiscal Federalism, 118 Harv. L. Rev. 2544 (2005)Google Scholar (criticizing the devolution of fiscal responsibilities to states).

292 Regehr, Vivian L., Please Resuscitate! How Financial Solutions May Breathe Life into EMTALA, 30 U. La Verne L. Rev. 180, 194-96 (2008).Google Scholar

293 Laura Lorenzetti, Here's How Much Different Types of Doctors Are Paid, Fortune (Apr. 4, 2016), fortune.com/2016/04/04/doctor-salaries/ [http://perma.cc/2NEY-8EK3].

294 Regehr, supra note 293, at 194-97.

295 John C. Stowers, Write Off Losses as Bad Debt, Emergency Med. News, Oct. 2007, at 15 (Letters section).

296 Edwin Leap, Write Off Losses as Bad Debt, Emergency Med. News, Oct. 2007, at 16 (responding to John C. Stowers).

297 Fine, Dionne Koller, Exploitation of the Elite: A Case for Physician Unionization, 45 St. Louis U.L.J. 207, 209 (2001)Google Scholar (“While it may be that some exploitation of physicians is necessary and can be justified as being for the ‘greater good’ of solving our health care crisis, in the long run, society will only benefit from seriously considering the impact health reform has on physicians.”).

298 See, e.g., Rosenbaum et al., supra note 35 (discussing five case studies involving patient dumping after EMTALA's enactment and alternative enforcement systems); Terp, Sophie et al., Enforcement of the Emergency Medical Treatment and Labor Act, 2005 to 2014, 69 Annals Emergency Med. 155 (2017)CrossRefGoogle Scholar (concluding that despite the EMTALA, enforcement was rare at the emergency department visit, and finding a declining trend in enforcement).

299 Epstein, supra note 64, at 55.

300 Several courts have ruled, for example, that if a hospital fails to detect a medical emergency than it is not liable under EMTALA. See Bryant v. Adventist Health Sys./W., 289 F. 3d 1162, 1166 (9th. Cir. 2002); Marshall ex rel. Marshall v. E. Carroll Par. Hosp. Serv. Dist., 134 F.3d 319, 324 (5th Cir. 1998); Summers v. Baptist Med. Ctr.-Arkadelphia, 91 F.3d 1132, 1140 (8th Cir. 1996); Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 145 (4th Cir. 1996); Urban ex rel. Urban v. King, 43 F.3d 523, 525 (10th Cir. 1994); Gatewood v. Wash. Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 271 (6th Cir. 1990).

301 See CFPB Takes Action Against Medical Debt Collector, Consumer Fin. Protection Bureau (June 18, 2015), https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-medical-debt-collector/ [http://perma.cc/FS2T-BUWS] (discussing a CFPB order of relief to harmed consumers and a fine on a debt collection company); CFPB Takes Action Against Two Law Firms for Misrepresenting Attorney Involvement to Collect on Medical Debts, Consumer Fin. Protection Bureau (Jan. 9, 2017), https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-two-law-firms-misrepresenting-attorney-involvement-collect-medical-debts/ [http://perma.cc/SHY6-BDAF] (discussing a CFPB order of relief to harmed consumers and a fine on debt collection law firms for misrepresenting that a lawyer was involved in debt collection); I.R.C. § 501(r).

302 Peter Beinart, The Republican Party's White Strategy, The Atlantic (July/Aug. 2016), www.theatlantic.com/magazine/archive/2016/07/the-white-strategy/485612/ [http://perma.cc/QD4F-7CUT]; Michael Schaub, ‘Xenophobia’ is the Word of the Year for 2016, Says Dictionary.com, L.A. Times (Nov. 28, 2016), www.latimes.com/books/la-et-jc-xenophobia-word-of-the-year-20161128-story.html [http://perma.cc/3MSVEMM6].

303 See, e.g., Gilens, supra note 137; Hancock, supra note 224.

304 See U.S. News, supra note 194.

305 See Gostin, supra note 98, at xxii (“[P]ublic health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to ensure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) …. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.”).