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Article Excerpt
I. INTRODUCTION
Listening to today's news, it is impossible not to hear someone call for immediate health care reform. The uninsured, rising health care costs, the diabetes epidemic, the financial instability of health care facilities--these are just some of the issues that have contributed to what has become a health crisis of epic proportions. Presidential candidates,(1) former New York Governor Eliot Spitzer,(2) and even New York City Council Speaker Christine Quinn(3) have presented various reform proposals to cover the uninsured and underinsured, expand primary care, and curb inflated health care costs in an effort to manage this crisis. What is missing from these proposals, however, is a crucial element that health care policymakers have overlooked for far too long: meaningful community participation in a deliberative process whereby community residents can influence decisions about their local health care resources.
The concept of community residents participating fully in a deliberative decision-making process is hardly new. Legal scholars have discussed what has been called a "republican(4) revival" for over two decades. (5) The modern form of republicanism--what this Article refers to as "civic republicanism"--stresses the transformative nature of deliberation as people with diverse interests collectively seek the common good. Thus civic republicanism, with its emphasis on deliberation and community, is a counterpoint to liberal pluralism, which conceives of society as individuals with competing interests bargaining within the political process.
This Article utilizes the civic republicanism framework to call for a form of community health planning that incorporates the active participation of community members in the deliberative process of allocating health care resources. Like liberal pluralism, the current health policy model rests upon the competing interests of special interest groups, such as hospitals and labor unions, as they battle for leverage within the political process. Yet recent hospital closures in New York City communities have demonstrated the fallibility of excluding community input within this pluralist model. By failing to consult the people most affected by health policy decisions, the State, as well as health care administrators, makes uninformed choices that have proven to be costly for both the community's health and the financial stability of the health care system. Thus, no health care reform proposal can succeed without engaging the public in a meaningful dialogue that learns from community members' localized knowledge while at the same time empowers them to take control of their health care needs.
Part II of this Article provides some background on civic republicanism, drawing heavily from the work of Professor Cass Sunstein, whose conception of civic republicanism has four key principles: deliberation in the public sphere, equality within the deliberative process, group consensus towards a common good, and the development of the civic virtues of active citizenship. (6) These principles of civic republicanism are further discussed in the context of health care policymaking, particularly regarding the need for civic participation in community health planning. Part III of this Article moves the discussion of civic republicanism beyond just theory by telling the story of four communities in New York City--Central Brooklyn, Southeast Queens, the Northeast Bronx, and Southwest Brooklyn--that have endeavored to insert themselves in the public discourse regarding the possible closure of their respective neighborhood hospitals. By making their voices heard, these communities have demonstrated that localized knowledge and concerns are essential features of good government, especially in an area like health care that so greatly impacts the welfare of the community. Equally as important, these stories demonstrate the need for comprehensive, community-based health planning that incorporates genuine community participation as part of any successful health care reform.
II. CIVIC REPUBLICANISM AS A FRAMEWORK FOR HEALTH PLANNING
It is important to clarify what exactly "civic republicanism" means as the term is used in this Article. Like many forms of political theory, it is subject to various distinctions and possible disagreements among legal scholars. (7) But there are general themes of community, deliberation and the common good which serve as the foundations of modern republicanism and inform our understanding of political processes as an analytical framework to critique the failures of the present health care system. Civic republicanism conceives of citizens as part of a larger political community and stresses the potential of reaching consensus for the common good through deliberation, rather than competition among independent and isolated actors within the political process. (8) The contrast between the "community" and the "individual" is particularly helpful when discussing health care, which currently suffers from a more market-based emphasis on competition among individual self-interests. Indeed, it would be difficult to think of a more "common good" than a community's health and health care, rendering civic republicanism especially apropos to this area of public decision-making.
A. Background on Civic Republicanism
What has been coined the "republican revival" is a response by some legal scholars to the over-emphasis of liberal and pluralist ideals in U.S. constitutional jurisprudence. Liberal theory considers the individual to be the "ultimate concern of moral and political justice," and thus focuses on the individual's desires as the engine of political activity. (9) Drawing upon liberal theory, pluralism likewise emphasizes the primacy of the individual in the political sphere as conflicting interests compete with each other. (10) As a consequence, pluralism has little faith in the capacity of people with diverse interests to deliberate collectively towards a common goal. Instead, pluralism conceives of individuals utilizing "deception, coercion, or other manipulation" in their interactions with each other within the political process. (11) As a consequence, pluralists consider politics to be nothing more than a "market-like medium" navigated by competing individuals who seek to satisfy their own private interests. (12)
Dissatisfied with the shortcomings of liberal pluralism's individualistic and market-based approach towards political participation, (13) republican theorists have challenged the "hegemony" of liberal assumptions and pluralist ideals in American political culture. (14) The efficacy of connecting civic republicanism to the foundational principles of the U.S. Constitution or pronouncing republicanism's superiority over the rights-based discourse of liberal pluralism is beyond the scope of this Article. Rather, this Article utilizes civic republicanism as a theoretical framework to critique the exclusion of community participation in decisions concerning the allocation of health care resources. Of particular insight is Professor Sunstein's theory of republicanism and its four main principles: deliberation in politics, equality of political actors, universalism or a common good, and citizenship. (15) Each of these principles supports the argument that community participation in political decision-making, in this case health care policy, is necessary for an effective democracy and the judicious allocation of health care resources.
Civic republicanism's emphasis on open dialogue and deliberation presupposes that policymakers cannot know what is best for the community. (16) Thus, according to Professor Sunstein, the requirement for deliberation should not be "purely formal" nor should politically powerful groups be allowed to impose outcomes onto the deliberative process. (17) Rather, in believing in the transformative potential of deliberation, civic republicanism requires exposure to as many diverse interests as possible, which are then subject to scrutiny and revision based on the multiple perspectives that contribute to and are borne from the interactive discussions. (18) The ideal of civic republicanism, therefore, "is not initial agreement on substantive issues, but belief in the consensual possibilities of deliberative dialogue." (19) Moreover, the potential for consensus is less dependent on "identical conceptions of the good," but instead depends on the faith that interaction that is truly open and free among individuals will eventually lead to a common understanding. (20) Consensus in this manner benefits from the process of vetting decisions through multiple perspectives, which is a "measure of the legitimacy of government action." (21)
A prerequisite for true deliberation--representing the wide array of interests demanded of civic republicanism--is equal participation in the deliberative process. Indeed, the integrity of the deliberative process, as well as the value of subsequent results, would be wholly undermined by the failure to ensure equal access to the political process due to disparities in wealth and power. (22) Because civic republicanism values the opinions of everyone, regardless of status or power, unequal influences within the political sphere do not further its goals. (23) Thus, for Professor Sunstein, efforts to equalize political power, such as proportional representation, are more justified on republican bases because the deliberative process thrives on the inclusion of multiple voices, especially the voices of disadvantaged groups that may have less access to the process. (24) Furthermore, in contrast to a pluralist model where diverse interests are viewed as in competition with each other, republicanism seeks to ensure that certain groups have access to the deliberative process. Rather than giving these groups a "piece of the action," the goal is to examine as many views as possible in search of the best outcome for everyone. (25)
The importance of equal participation cannot be overestimated, especially in light of the United States' history of excluding groups from civic life based on republican arguments. (26) Professor Derrick Bell, for example, has commented on the natural skepticism of African-Americans to revive a political theory that had defined the "common good" as the "common good of whites" and upheld the hypocrisy of civic participation in the context of the de jure and de facto exclusion of African-Americans from public life. (27) Even Professor Sunstein has noted the irony of invoking republicanism, which had "traditionally been allied with exclusionary practices," in order to reject those very same practices. (28) Nevertheless, Sunstein argues that the value of republican theory is its ability to critique its own implementation. (29) The key, however, is the foundational principles of civic republicanism that require the equality of political actors during the deliberative process. In order to foster true diversity of perspectives, there must be more than mere formal equality; there must be an affirmative effort to include voices that are more likely to be silenced due to racial, economic, or other forms of injustice. (30) For this purpose, Professor Mari Matsuda's method of "looking to the bottom" is particularly instructive. According to Professor Matsuda, the "technique of imagining oneself black and poor in some hypothetical world is less effective than studying the actual experience of black poverty and listening to those who have done so." (31) Likewise, it is imperative for policymakers, especially health policymakers, to listen to the voices of those most marginalized within the political system and ensure that their concerns inform policy decisions in a meaningful way.
Deliberation is only productive if it will lead to some form of consensus. As a consequence, the "common good"--or what Professor Sunstein calls "universalism"--is an underlying supposition of what can be achieved through civic republicanism. The concept of "universalism" is simply a belief in the power of discussion and dialogue in mediating differences, including different notions of the common good. (32) The common good, therefore, is an unknowable concept that can only be revealed to a certain extent at the end of an inclusive and functional deliberative process. (33) Consequently, the mutual respect necessary for successful mediation is intimately connected to civic republicanism's view of individuals as members of a larger community. The community is "consciously and jointly shaping its polity [and] its way of life" (34) as members interact with and learn from each other through their deliberation in the public sphere. (35)
During the course of deliberation, participants seek what is best for the community at large, not the satisfaction of their own personal interests. (36) Thus, the very act of deliberating for the common good, as opposed to one's self-interest, promotes citizenship and helps develop the civic virtues of empathy and community. (37) By placing a "high premium on citizenship and participation," civic republicanism also facilitates "decentralization, local control, and local self-determination," (38) and advances an active self-government that cultivates "knowledge of public affairs, a sense of belonging, a concern for the whole, and a moral bond with the community whose fate is at stake." (39) In essence, civic republicanism is a "commitment to self-government by citizens conceived of as equals" as they control their own political fate and the well-being of their community. (40) Active participation in the political community, therefore, results in both good government and good citizens, for the benefit of everyone.
B. Civic Participation in Community Health Planning
The civic republican principles of deliberation, equality, the common good, and citizenship all support the active participation of community members in community health planning. Indeed, health policy experts and legal scholars have long advocated greater community participation in health care decision-making. The key, however, is the form of that community participation and whether it truly entails equal access to meaningful deliberation.
Much of the literature discussing community involvement in health policymaking uses language strikingly similar to that of civic republicanism. Equal access to and participation in the deliberative process, a key feature of civic republicanism, is considered an essential component of health policymaking because it legitimizes decisions, rendering them more acceptable to the public. (41) This legitimacy is especially important in the area of health care, which "is deeply ingrained in the American consciousness" as a fundamental right. (42) Because the allocation, or rationing, of health care resources is "fundamentally a moral and political problem," the government must play a role in protecting the public interests at stake in health care policy, especially for the more vulnerable members in the community. (43) As a consequence, what may seem to be "objective approaches to health care cost containment," such as the closure or downsizing of hospitals, necessarily invoke questions of morality and justice that must be resolved in the public sphere by all those affected. (44) The enormity of the public interest at stake when health care resources are allocated or rationed demands that decisions be "publicly assessed through a democratic consensus mechanism" in order to achieve legitimacy as a community driven decision. (45)
Broad-based deliberation, moreover, produces more valuable results because such deliberation incorporates the diverse interests and concerns of people within the health care system. The shift away from relying primarily on the medical profession in the decisionmaking process reflects a new understanding that technical expertise is no more valuable in health resource allocation than information that lay people can provide. (46) Even at the treatment level, providers are recognizing the importance of incorporating the particular cultural, moral, and lifestyle preferences of a given patient when determining treatment options. (47) Without the active participation of communities in the deliberative process, health care allocation decisions would be "beyond the pale of public scrutiny or accountability" and subject to the possibility of "capricious, unreasonable, or dangerous" decisionmaking that lacks the imprimatur of widespread legitimacy. (48)
Like civic republicans, health advocates and scholars recognize deliberation as the "key to consensus," because various stakeholders actively learn about a given situation, listen to others, and share multiple perspectives. (49) Incorporation of a broad range of community input from the very beginning, through a structured and institutionalized process, allows health care to develop into a political issue for individuals from all walks of life, as it should be. (50) Institutionalized support for community engagement in public discourse is, in essence, an affirmation of community, which has a "self-reinforcing effect when the benefits are produced." (51) This is particularly important in low-income communities, immigrant communities, and communities of color, which often have experienced numerous forms of exclusion and disempowerment. Through the process of addressing their local health problems, these communities can develop a grassroots political infrastructure to engage actively in the improvement of their local health care system. (52)
Ultimately, meaningful deliberation in the health care decisionmaking process can foster self-government and community empowerment--the same objectives advanced by civic republicanism's emphasis on the civic virtues of active citizenship. Communities become empowered when they gain "information, skills, and resources" that facilitate...
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