When the Affordable Care Act was being debated within the lofty chambers of the Supreme Court earlier this year, I was unhappy that the right to health care in this country was even being debated at all. It should be a given. What right do nine unelected people in black robes have to decide whether 300 million other people should see a doctor when they get sick? I felt that the traditional doctrine of judicial review was completely inappropriate when it came to health care. But then, I thought about all the great civil rights decisions of the 20th century. Where would we be if the Supreme Court hadn’t stepped in then?
Eventually, the Supreme Court ruled (narrowly) in favor of the Obama administration and the ACA. The 5-4 majority upheld the individual mandate’s financial penalty as a tax permissible under the Constitution. The ruling really only established a right to purchase health insurance – not an inalienable right to health care. So the question is this: should the right to health care be added to the Bill of Rights? Would that have made a difference in the outcome of health reform? Had that right been established in the Constitution long ago, would we be a different country today?
The Universal Declaration of Human Rights, of which the United States is a signatory, establishes health care as a basic human right:
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
The World Health Organization’s constitution states the following:
The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without the distinction of race, religion, political belief, economic or social condition.The constitutions of many countries have some language establishing the right to health care or the duty of the state to provide health services.
A 2004 Cornell University study compared the constitutions of 189 countries and found that about two-thirds have some language addressing health or health care. Many establish the right to health care and/or the duty of the state to provide health services. A sampling from each region:
Art. 196. “Health is the right of all and the duty of the State and shall be guaranteed by social and economic policies aimed at reducing the risk of illness and other maladies and by universal and equal access to all activities and services for its promotion, protection and recovery.”
“The public authorities shall guarantee for everyone, as provided in more detail by an Act, adequate social, health and medical services and promote the health of the population. Moreover, the public authorities shall support families and others responsible for providing for children so that they have the ability to ensure the well-being and personal development of the children.”
“The right to the protection of one’s health is hereby recognized. It is everyone’s duty to participate in the promotion and preservation of individual and community health. The State shall maintain a satisfactory environment for the protection of everyone’s health.”
“The individual has the right to security, education, health care, and social security. The Iraqi State and its governmental units, including the federal government, the regions, governorates, municipalities, and local administrations, within the limits of their resources and with due regard to other vital needs, shall strive to provide prosperity and employment opportunities to the people.”
“All people shall have the right to maintain the minimum standards of wholesome and cultured living. In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health.”
“(1) Everyone has the right to health protection. (2) Equal access to health care services, financed from public funds, is assured by public authorities to citizens, irrespective of their material situation. The conditions for and scope of the provision of services are specified by law. (3) Public authorities are obligated to provide special health care to children, pregnant women, handicapped persons and persons of advanced age. (4) Public authorities are obligated to combat epidemic illnesses and prevent the negative health consequences of degradation of the environment. (5) Public authorities shall support the development of physical culture, particularly amongst children and young persons.”
“(1) Everyone has the right to have access to—(a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment.”
“The State, in order to improve national health, shall establish extensive services for sanitation and health protection, and a system of public medical service.”
However, just because a country’s constitution establishes a right to health care doesn’t mean it always lives up to that promise. Some of the nations with the right to health care written into their constitutions don’t necessarily have advanced hospitals and/or the healthiest populations. These tend to be authoritarian regimes or Third World countries with few resources. Of the countries that don’t have the right to health care in their constitutions, some are First World nations with healthcare systems that rank among the best in the world. For example, the constitution of number one ranked France is silent on the right to health care. The same goes for Canada, whose system is seen as the preferred model for single payer advocates in the United States. The study’s authors concluded that a nation’s commitment to health care has no relation to whether or not healthcare language is in its constitution.
So is it a nation’s culture and history (coupled with enough resources) that makes the difference? Europe’s devastation after World War II set the stage for that continent’s widespread adoption of social democracy, characterized by a robust social safety net. That included a commitment to universal health care. Social democracy was seen as the alternative to the competing ideologies of fascism and communism. On the other hand, America evolved quite differently. The United States was founded on the frontier idea of individual liberty. Colonizing a vast continent where your nearest neighbor could, quite literally, be miles away from you meant the concept of self-reliance was a virtue. This concept combined with America’s historic embrace of Calvinism – the Protestant work ethic and the Christian idea of predestination (success as an indicator of being favored by God) – which gave rise to modern capitalism. America’s history of racial and class strife has also contributed to weak social solidarity. A more conservative judiciary built up over the last 40 years has favored an interpretation of the Constitution that seeks to limit government’s role in public life rather than expand human rights. Hopefully the United States will evolve into a country with a de facto universal right to health care without having to amend its founding document. But, it may have been far easier to implement if that right had been included long ago.