Brooklyn Law Review


Access to health care requires access to a care center and access to comprehensive health care services. Rampant hospital mergers are uniquely poised to reduce both the number of hospitals, requiring patients to travel further, and the services provided within a newly merged hospital, namely reproductive health services. This phenomenon is clearly seen through the merging of secular and nonsecular hospitals, which often result in patients being forced to travel much further for reproductive health care. In the United States’ current model, health care is not a right, but is treated as a commodity. As such, it is governed by antitrust law. Current antitrust law is, however, an inadequate regulatory mechanism. The burdens of proof provided by the controlling laws, the Clayton Act and the Sherman Act, are ambiguous and do not account for the fact that full spectrum health care is not a commodity that can be foregone. This note proposes to address the deficiencies in the relevant antitrust law by amending both statutes to include health care specific language. Additionally, this note amends the Federal Trade Commission’s (FTC) Horizontal Merger Guidelines to provide mechanisms for the government to evaluate access to care during the premerger approval process. The concrete language in these three amendments will embolden the FTC to challenge more mergers and provide courts with greater direction when evaluating those challenges.