In Volume 3, Number 3 of this journal, Professor Havighurst* wrote a brief Comment in which he observed that the function of health care cost-containment regulation is the rationing of health care resources, and argued that the fostering of health care consumers' and providers' free choice in the competitive marketplace is preferable to conventional cost-containment regulation as a mechanism for such rationing. He briefly outlined various reforms, including changes in federal tax treatment of health insurance premiums, aimed at implementing his ap- proach. Subsequently, in a Comment in Volume 4, Number 1, Stephen M.Weiner, then Chairman of the Massachusetts Rate Setting Commission, criticized Professor Havighurst's analysis by asserting that it failed to acknowledge the validity of regulation in the health care field; that it overemphasized free market economics; and that it failed to appreciate the essentially political nature of regulatory processes. Mr. Weiner argued that health care regulation is here to stay, and called for renewed efforts to clarify and implement appropriate relationships between health care regulation and (1) health care rationing, (2) health care planning, and (3) health care competition. In the Comment below, Professor Havighurst replies both to specific statements in, and the general direction of, Mr. Weiner's critique, asserting that it inaccurately represented the earlier Havighurst Comment in several important respects. Professor Havighurst states, for example, that, Mr. Weiner's opinion notwithstanding, Havighurst-both in his earlier Comment and in his other writings-has considered extensively the political nature of regulation, and, furthermore, has been constructive in his critiques of regulation. He charges Mr. Weiner with attempting to stifle debate on the question of the volume and direction of health care regulation, and suggests that Weiner's criticisms may reflect a bias against the individual's right to choose for himself and to have his preferences registered in the economic marketplace. * Professor of Law, Duke University School of Law.
Clark C. Havighurst, More on Regulation: A Reply to Stephen Weiner, 4 American Journal of Law & Medicine 243-253 (1978)
Available at: https://scholarship.law.duke.edu/faculty_scholarship/1770