Karen Tani —
As a historian working in a law school, I think often about what history adds to the study of law and the training of future lawyers. Rarely does history provide an obvious road map to solving new legal problems, but it does at least two other things well: (1) it helps explain why the legal landscape looks the way it does; and (2) it illuminates the consequences of particular legal choices. This makes all the more valuable recent historical work that engages with political economy. We gain from this work a better sense of the political economies that produced our current configuration of laws. We also gain insights into how law constructs the political economy of the future—by sending signals about who will be insulated from the vicissitudes of “the market” and who will be exposed, whose rights can be bargained away and whose are too sacred, whose lives have value and whose do not.
An excellent example of this work is historian Gabriel Winant’s recent article in the Journal of American History, “A Place to Die: Nursing Home Abuse and the Political Economy of the 1970s.” Winant does not frame the piece as legal history, but law is all over the history he tells, in complex and sometimes unintuitive ways.
The story at the center of the article is the discovery of horrific, systemic patient abuse at John J. Kane Hospital, a large long-term care facility for the elderly and disabled located on the outskirts of Pittsburgh, Pennsylvania. Opened in 1958, this county-owned and -operated institution replaced the run-down local almshouses that had been the traditional refuge of the elderly poor. By 1975, however, conditions at Kane seemed anything but modern. First-person accounts revealed patients confined to filthy “geri-chairs” all day long, denied exercise and languishing in their own waste. Patients who could not get out of bed often developed sores and infections, owing to understaffing and inattention. Basic supplies were in short supply, leaving residents without such essentials as wheelchairs, clean linen, false teeth, bed rails, and privacy curtains. Physical and emotional abuse was common. Restraint and sedation, the norm (109-110). Ultimately, these conditions became public, thanks to a 1975 exposé. Local, state, and federal investigations followed.
From the uproar over Kane, one might conclude that such conditions were aberrational. In Winant’s telling, they were anything but. The hospital and its abuses reflected the political economy of the mid-1970s—a political economy that in 2018 looks more familiar than strange.
To make this case, Winant begins with the political economy of the post-World War Two period and shows how it was coming apart at the seams. This mid-century order was built around single-wage households, headed by a male breadwinner. Male wage labor fueled the economy (still largely centered on industry); the unwaged labor of their wives “reproduced the household and the community.” Care work, in other words, was built into the “private” sphere. The state shored up this model by rewarding the idealized household and supporting people who, through no fault of their own, did not fit the pattern (98). Law undergirded this political economy in myriad ways, as historian Alice Kessler-Harris has shown, from the statutes that created the safety net to the Supreme Court decisions that affirmed women’s place in the home.
But even in the 1950s, the cracks in this order were becoming apparent. They appeared first in rust belt cities like Pittsburgh, where entire economies centered on a single industry. By the late 1960s, Winant notes, the once-thriving “Steel City” had “the nation’s lowest labor force participation rate in the country” (98). This, in turn, “threw existing systems for caregiving into crisis” (98). Men could no longer support their households with factory jobs, leading more women to enter the work force; this, in turn, “ate into the supply of household labor” and shifted care work elsewhere (99).
These changes coincided with rapid increases in the cost of health care—a result, Winant explains, of “federal support for bioscience research and hospital construction, as well as the spread of collectively bargained health insurance” (101). These price increases hit older Americans especially hard, both because they had more medical needs than younger Americans and because even after the implementation of Social Security, their incomes were lower. The political response was the Social Security Act Amendments of 1965—more commonly known as the law that created Medicare and Medicaid.
Medicare and Medicaid are now so much a part our lives that we take them for granted, forgetting what came before. In the late 1960s and 1970s, Winant shows, these two programs “transformed the landscape of long-term care.” One of the ways they did so was by paying for medical care received in institutional settings: Medicare covered “a limited period of skilled nursing care”; Medicaid paid for “indefinite institutionalization of the elderly poor” (101). Picture someone who was age 65 or older and unable to live independently: Rather than rely on family and local charity, that person could now seek care in an institution and the state and federal government would foot the bill. To the many elderly residents whose younger family members had moved away, in search of better opportunities, institutionalization would not even have been a choice.
Simultaneously, Medicare and Medicaid transformed Kane Hospital and the local economy, in a pattern that would be repeated around the nation. “The more patients Kane treated,” Winant explains, “the more reimbursement it received” (101). This revenue was especially important at a time when the taxable value of industrial real estate in the Pittsburgh area was declining and working-age residents fleeing (103-04). In short, Great Society financial incentives combined with deindustrialization to make institutional elder-care a life-line for hard-hit communities.
There was one final layer of complexity, also instantiated in law: the kind of workers needed to staff facilities like Kane were part of the “heavily feminized and nonwhite work forces” that lawmakers deliberately excluded from New Deal-era rights and protections (a story that Suzanne Mettler, Ira Katznelson, and others have told well). Against this backdrop, it seemed only natural to Kane administrators to offer low wages and poor working conditions. In 1968, Winant writes, “one in five Kane employees was still paid less than federal minimum wage”—and that was after workers staged a successful strike for a pay increase (102). To be sure, these circumstances did not have to lead to some of the worst abuses reported at Kane—sexual assaults, racial epithets, hate-filled physical attacks. But they contributed to an environment in which staff viewed patients as “medical problems” rather than human beings and saw their job as sustaining “bare life” rather than fostering health (109, 111).
A large part of Winant’s article is about how the conditions at Kane became a scandal, how the situation improved, and how Kane remained a public institution, in the face of multiple efforts to privatize it. At a minimum, Winant suggests, this history calls into question “neoliberalism” as the best frame for this period and highlights paths of resistance. That is a compelling ending, but here is another one: just a few months ago the Center for Investigative Reporting published a devastating exposé of abuse and neglect in publicly subsidized private care. The report focused on people with developmental disabilities, rather than the elderly, but echoes of the Kane Hospital story are everywhere, from anecdotes about patient deaths and beatings, to documentation of extreme under-staffing, to the millions of dollars in Medicaid funding that these institutions reaped.
Against the backdrop of such reporting, it is Winant’s invocation of the idea of “necropolitics” that will stay with me. Quoting Achille Mbembe, Winant defines sovereignty as “the capacity to define who matters and who does not, who is disposable and who is not.” What we see in the Kane story, Winant continues, is “a crisis of social reproduction for human leftovers, who both had rights and had to be disposed of” (111).
Who made this crisis? Why did any group of citizens need to be “liquidat[ed],” as Winant puts it (111)? There is no easy answer, and yet, clearly, law is deeply implicated here—as it is anytime one group of human beings is allowed to suffer systematic degradation. Histories like Winant’s help us look past law’s neutral façade and name its casualties.
Karen Tani is a Professor of Law at UC Berkeley Law School.