Co-written by Martha F. Davis, professor of law, Northeastern University School of Law and faculty co-director of the law school's Program on Human Rights and the Global Economy
As the Supreme Court weighs the fate of the Patient Protection and Affordable Care Act (ACA) this week, it should consider the law's international significance as well as its domestic impact. By extending health care coverage to new, under-served groups, the ACA squarely responds to concerns repeatedly raised by international human rights bodies and experts about racial disparities in U.S. health care policy. As emphasized in an amicus brief submitted to the Court by several civil and human rights organizations, the ACA represents an important effort by the United States to abide by its human rights commitments and assert its global leadership in providing equitable health care access.
It is well-documented that racial and ethnic minorities disproportionately lack health insurance. The Centers for Disease Control and Prevention estimate that approximately two of every five persons of Hispanic ethnicity and one of five non-Hispanic blacks were classified as uninsured during both 2004 and 2008. Likewise, the number of people of color who live at the poverty level and qualify for Medicaid is disproportionate to their representation in the general population. With the ACA, Congress made health care coverage available to millions of low-income individuals, mitigating racial disparities in access to health care within the United States. Indeed, the Congressional Record is replete with references to the enormous impact that the ACA will have on helping racial and ethnic minorities afford health insurance coverage.
At the same time, the ACA represents an important step toward bringing the United States into compliance with its international treaty obligations to end racial discrimination in health care access, including commitments the U.S. made in ratifying the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994 and the International Covenant on Civil and Political Rights (ICCPR) in 1992. By ratifying CERD, the United States committed itself to guaranteeing non-discrimination on the basis of race, color, national and ethnic origin in the enjoyment of, among other things, public health and medical care. The ICCPR similarly obligates the U.S. to adhere to principles of nondiscrimination on the basis of race as well as other grounds.
On each occasion that the United States has been reviewed for its compliance with CERD, the independent U.N. experts conducting the review have noted their concern about the high levels of racial inequality in access to health care in the U.S. Other international experts have made similar observations, with the U.N. Independent Expert on Human Rights and Extreme Poverty concluding that the inequality in health outcomes in the U.S. is "staggering."
Since Congress enacted the ACA in 2010, the United States government has repeatedly pointed to the new law as evidence of its commitment to address racial disparities in access to health care, abide by its international human rights obligations, and advance the nation's global credibility on nondiscrimination in health care. For example, in remarks last year to the U.N. Human Rights Council, the U.S. State Department's Legal Adviser, Harold Koh, cited the "recent landmark healthcare reform" as the latest example of a U.S. federal program established to "empower our citizens to live what FDR called a 'healthy peacetime life.'" Similarly, in its 2010 report to the U.N. Human Rights Council on the state of human rights in the United States, the U.S. government asserted that the ACA "will help our nation reduce disparities and discrimination in access to care that have contributed to poor health."
The enactment of the ACA was an important and deliberate advance toward decreasing race discrimination in access to health care. Significantly, the ACA also furthers the nation's international human rights treaty obligations, a point that should inform both the public discussions of the law and the Court's consideration of its constitutionality.
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