This special issue focuses on ways that law and politics can “entrench” power, with significant consequences for health equity and other social outcomes. Most of the time, actors who participate in the policy-making process take existing rules, institutions, and norms as given. They pursue incremental goals, knowing that victories and defeats are usually temporary and that the battle will have to be joined again tomorrow. At other times, however, actors seek to alter basic features of the political and social world itself. As Paul Starr (2019: 1–2) explains in his important book Entrenchment: Wealth, Power, and the Constitution of Democratic Societies: “Entrenchment, like the closely related terms ‘lock-in’ and ‘consolidation’ can refer to any process whereby an institution, a technology, a group, or a cultural form—any kind of social formation—becomes resistant to pressures for change.”
Starr observes (2019: 5) that entrenchment can be either intended or “unplanned and emergent.” Entrenchment is distinct from institutionalization; entrenched power is not always directly institutionalized, and institutions cannot always withstand the force of external attacks. Entrenchment is not per se desirable or undesirable. Some aspects of law and society must be fixed if people are to organize their lives and make plans for the future. Moreover, strategic politicians can purposefully design entrenchment mechanisms to endow their policies with durability, as Franklin Roosevelt demonstrated when he crafted Social Security as an “earned” entitlement, funded by earmarked taxes (Derthick 1979). Yet precisely because embedded institutions, interests, and beliefs constrain later choices and narrow democratic flexibility, the stakes in entrenchment politics are extremely high (Starr 2019: xi.)
Though entrenchment is found in many policy domains, it is particularly pervasive in the field of health. As is well known, the United States spends dramatically more on health care as a share of its economy than other wealthy nations, yet it produces worse outcomes than many of its international peers. The inefficiencies and inequities in American health care persist not because most policy makers believe the current system is ideal, but rather because there are high barriers to change. Venturing further afield, entrenchment can affect upstream determinants of health such as housing and education. Redlining in the postwar years, for example, made it difficult or impossible for Black families to purchase homes in many affluent areas, constraining their ability to accumulate wealth and fencing them out of high-quality public school systems. Once the doors of opportunity begin to close on marginalized populations, it becomes harder and harder to open them. Even major investments in the downstream determinants of health—such as the Affordable Care Act's investment in insurance coverage—may be insufficient to make up for entrenched patterns of health inequities.
The articles in this special issue examine laws, policies, and norms that are entrenched (or may become entrenched), with an eye to the implications for health equity. In our first article, Paul Starr explores four general strategies for overcoming pathological forms of policy entrenchment: Schumpeterian innovation, globally oriented innovation, institutional conversion, and social creativity. In the next article, Jamila Michener examines how state preemption of local housing policy can erode grassroots democracy. Then Jessica Trounstine and Sidra Goldman-Meller explore the association between residential segregation and infection and death from COVID-19. In the fourth article, Amy Kapczynski investigates how the pharmaceutical industry has entrenched its economic, political, and ideational power. In the next article, Jing Liu and David A. Hyman analyze whether occupational licensing requirements for dental hygienists and other allied health professions have a disparate impact on historically marginalized groups. Finally, Carolyn Tuohy turns to the role of narratives in entrenching the missions, values, and identities of key institutions in American and British health care. In my concluding article, I draw out the broader lessons of the articles for scholars, advocates, and policy makers.
Our hope is that, taken together, the articles will allow policy makers, researchers, and advocates to better understand how to protect existing legal precedents, institutions, and practices that afford opportunities to historically marginalized groups. We also hope that it will yield insight into how to design effective governmental and civil society responses to entrenched institutions and policies that impose disproportionate burdens on vulnerable constituencies.
This special issue was made possible by the financial assistance of the Robert Wood Johnson Foundation. The author wishes to express his gratitude to Matthew Pierce, senior program officer, for his guidance and support. The project was conceived jointly with Nicholas Bagley, who is on public service leave from the University of Michigan Law School and was unable to participate in its final stages. This special issue is dedicated to the memory of David Kline Jones, a board member of the Journal of Health Politics, Policy and Law and a scholar who dedicated his work to health care access, justice, and equity.