Healthcare policy development involves many different stakeholders. One of the most important stakeholders is government, which Patel & Rushefsky (2014), describe as the institutional environment. This environment comprises rules, structures and settings. The involvement of the government is through its three branches, legislative, executive and judiciary. Each of these branches has a unique role to play in the policy making process. The legislative makes the policies, the executive implements them and the judiciary resolving conflicts that may arise. The role of the legislative and the judiciary are discussed.
The legislative through congress is tasked as the primary policy-making organ. The policies generated are usually in form of statutes or laws and they usually reflect the demands of the constituencies of legislative representation (Shi & Singh, 2014). Congress is characterized by decentralization of power and its consequent dispersion amongst numerous committees. This causes competition among committees as well as bargains and compromises during policy formulation, all of which affect effective health policy formulation. Caucuses are also important in pushing for particular reforms such as a diabetes-caucus that successfully pushed for diabetes-related legislation (Patel & Rushefsky, 2014). This has important implications for health policy as it is affected by such issues as partisanship.
The judiciary’s main role is in the interpretation of policy. According to Shi & Singh (2014), the judiciary supplies policy through the interpretation of an ambiguous statute, the constitution, or when it sets a judicial precedent. The judiciary further ensures that the implementation of policy is done within the precincts of the constitution (Patel & Rushefsky, 2014). Through this authority, the judiciary acts as a policy maker. Examples of judicial activities that have resulted in policy making are such as the Roe v. Wade decision by the Supreme Court which effectively legalized abortion (Patel & Rushefsky, 2014).
The roles of the legislature and the judiciary are often intersecting and supplementary at times overlapping and at others conflicting. In some instances, the defragmented nature of congressional authority may make it difficult to achieve effective policy. In such instances, the judiciary may shape health policy thereby supplementing the Congress (Kersh, 2006). Instances of such judicial decisiveness where other arms had failed include efforts to guarantee the right’s of patients’ against their HMOs. Moreover, it is judicial action that led to reduced tobacco advertising after legislative inaction. Overlap in policy development between the two arms may occur for example where the Judiciary opts to uphold congressional statutes. Moreover, the judiciary may also grant policymaking power to legislative arms. An example of this is Webster v. Reproductive Health Services (1989) where the Supreme Court allowed provided states with the mandate to regulate and restrict abortions in public clinics (Patel & Rushefsky, 2014). Clearly, there exists a relationship between the legislative arm and the judicial one.
There is also a potential for conflict between these two arms. Conflict may occur because of the intersecting roles or because of conflicting roles. The role of the judiciary is to ensure that laws are enacted in accordance with the constitution and this may therefore cause it to overrule a decision made by congress by terming the same as unconstitutional. Conflict may also arise over scope, whereby legislative action usually represents the needs of individuals being represented (Patel & Rushefsky, 2014). However, the judiciary endeavors to strike a balance between public health, and the protection of individual rights of individuals (Goodman, 2007).