The Resurgence of Private Law in American Health Care

Document Type

Article

Publication Date

8-9-2025

ISSN

1533-4406

Publisher

Massachusetts Medical Society

Language

en-US

Abstract

As the regulatory landscape of American health care undergoes a transformation, private law is poised to play an increasingly central role in the health care system. Public law — the work of legislatures and administrative agencies — has long governed health care access, quality, and accountability in the United States. But recent deregulatory moves by the Trump administration have diminished its reach. Even if a future administration seeks to restore regulatory capacity, structural and political constraints will limit how quickly and thoroughly these changes can be reversed.

State-level public law — which includes insurance mandates and consumer-protection laws that apply to state-regulated health plans — remains operative, but private law is already being used to fill governance gaps in a system under strain. This body of law, which includes provisions that are typically established by courts or negotiated by individual actors and corporations and enforced by courts, governs relationships between private parties. Private law encompasses contracts, torts, and fiduciary duties, among other mechanisms.1 Increased reliance on private law both presents opportunities for reform and raises concerns about the erosion of vital safeguards.

The Trump administration has aimed to stimulate innovation and economic growth in the United States by reducing regulatory burdens and increasing the reliance on markets in various domains. In January 2025, President Donald Trump signed an executive order mandating that federal agencies identify at least 10 existing regulations that can be repealed for every new regulation they introduce. The administration has also slashed the workforce at the Department of Health and Human Services, which will make it difficult to enforce health regulations that survive.2 These moves are in keeping with a trend seen in Supreme Court decisions in recent years that has lessened the power of — and reliance on — agencies. Together, these changes are causing a seismic shift in health care governance. In the context of public law’s decreasing influence, we expect the role of private-law mechanisms to be elevated in several ways.

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