Publication Date

Fall 11-2023

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Organizational Units

Sturm College of Law


affordability, health law, pharmaceuticals, prescription drugs, health insurance, health care, affordability standards, affordable care act, inflation reduction act, waivers, tradeoffs, basic needs, health equity, health reform, opportunity


Affordable health care, insurance, and prescription drugs are priorities for the public and for policymakers. Yet the lack of a consensus definition of health affordability is increasingly recognized as a roadblock to health reform efforts. This Article explains how and why American health law invokes health affordability and attempts, or fails, to define the concept. It then evaluates potential affordability definitions and proposes strategies for defining affordability more clearly and consistently in health law.

Part I examines the role health affordability plays in American health policy, in part by contrasting the United States’s health system with systems elsewhere. Part II then reviews and categorizes approaches to affordability in American health law. It highlights how conceptions of affordability are woven into the Affordable Care Act’s premium assistance tax credits for marketplace buyers and how the American Rescue Plan and Inflation Reduction Act have implicitly shifted the definition of affordability. It also discusses how rulemaking around the “affordability guardrail” for state waivers of ACA provisions has prompted contestation between presidential administrations over the place of health equity and racial justice. After discussing these federal provisions, it identifies the role of affordability definitions in recent state-level innovations, such as affordability standards for health insurance and pharmaceutical affordability boards.

The latter two Parts situate these legal enactments within a cohesive framework and make recommendations. Part III categorizes existing or proposed definitions of health affordability according to their normative commitments, drawing on sociological and philosophical scholarship. Part IV then evaluates potential approaches to defining affordability. Options include continuing to leave affordability undefined, rejecting affordability as a cornerstone of health law, or replacing affordability with some of its constituent concepts. Rather than these alternatives, I propose a hybrid definition that combines different definitions discussed in Part III. It proposes that health spending is affordable if it delivers value for money without worsening access to basic needs or a reasonable opportunity range.

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Creative Commons Attribution-NonCommercial 4.0 International License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License

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Copyright held by the author. User is responsible for all copyright compliance.

Originally published as Govind Persad, Defining Health Affordability, 109 Iowa L. Rev. 241 (2023).

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Publication Title

Iowa Law Review





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