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HEALTH DISPARITIES, HEALTH CARE REFORM, MORALITY, AND THE LAW: "KEEP YOUR GOVERNMENT HANDS OFF MY MEDICARE" FrankMcClellan*
I.
INTRODUCTION

In January of 1939, President Franklin D. Rooseveltaddressed Congress on the need to develop a national health care program, asserting: The average level of health or the average cost of sickness has little meaning for those who now must meet personal catastrophes. To know that a stream is four feet deep on the average is of little help to those who drown in the places where it is ten feet deep. The recommendations of the committee offer a programto bridge that stream by reducing the risks of needless suffering and death, and of costs and dependency, that now overwhelm millions of individual families and sap the resources of the Nation.1 Seventy years later, the problem of health disparities continues to plague the United States. The passage of the Health Insurance for the Aged Act, which created 4 Medicare 2 to provide health careinsurance for senior citizens 3 and Medicaid to cover the poor who are disabled or have young children,5 has increased access to health care for some segments of the population. However, millions of citizens and residents of the

* Beck Chair Professor of Law and Co-Director Temple University Center for Health Law, Policy and Practice, Beasley School of Law, Temple University.
1. Franklin DelanoRoosevelt, A Request for Consideration of the Recommendations of the Interdepartmental Committee to Coordinate Health Activities, with Respect to the National Health Program. January 23, 1939, in THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 97, 99 (1941), available athttp://www.ssa.gov/history/fdrstmts.html#12.

2. Health Insurance for the Aged Act (Medicare Act), Pub. L. No. 89-97, 79Stat. 290 (codified as amended at 42 U.S.C. §§ 426-426a, 1395-1396d (2006)). 3. See, e.g., Hultzman v. Weinberger, 495 F.2d 1276, 1281 (3d Cir. 1974) (explaining purpose of Medicare is to ensure "medical care is available to the aged throughout this country"). 4. Medicaid Act, Pub. L. No. 89-97, 79 Stat. 343 (codified as amended at 42 U.S.C. §§ 1396-1396g, 1396i-1396v (2006)). 5. See, e.g., Pharm.Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 686 (2003) (describing purpose of
Medicaid as enabling states to provide medical assistance to children of low-income families and disabled persons without means for attaining adequate care).

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TEMPLE LAW RE VIEW

[Vol. 82

country continue to suffer from lack of access to healthcare,6 relying on hospital emergency rooms as a last-or in some instances the first-resort for health care.7 President Barack Obama declared at the outset of his administration in January 2009 that health care reform was at the top of his domestic agenda. 8 He aimed to persuade Congress to enact a major reform statute before the end of the year. 9 Enjoying the potential support of a clearmajority of Democrats in both the House of Representatives and the Senate, he challenged members of Congress to roll up their sleeves and get the job done.10 The year ended with two different bills adopted by the Senate and the House of Representatives but no newly enacted statute." The debate about the wisdom of wholesale reform of the health care system continued into 2010. In January of 2010, a...