THE BLOG
07/06/2015 07:43 pm ET Updated Jul 06, 2016

Does the Affordable Care Act Guarantee Healthcare as a Right?

In his recent celebratory remarks after the Supreme Court (SCOTUS) upheld the legality of subsidies/tax credits under the Affordable Care Act (ACA), President Obama had this to say: "Five years ago, after nearly a century of talk, decades of trying, a year of bipartisan debate -- we finally declared that in America, healthcare is not a privilege for a few, but a right for all." (1)

It would be good if this were true, but it is not. Healthcare as a right has been debated over many years, but is still not in place for all Americans as this country remains an outlier among advanced industrial countries around the world. Instead, despite the ACA, we continue to have a patchwork of ever-changing programs assuring access to health care for some people some of the time.

Let's look at what we do have in this respect. In the 1960s, Congress established a broad right to health care under statutory law by enacting Medicare, Medicaid, and the Children's Health Insurance Program (CHIP) for the elderly, disabled, people living in poverty, and children. In the 1980s it passed the Emergency Medical Treatment and Active Labor Act (EMTALA) requiring all Medicare-funded hospitals with emergency departments to provide appropriate emergency and labor care. More recently, Congress passed the Mental Health Parity and Addiction Equity Act (MHPAEA) in 2013, which assures a right to equal access to care for patients with medical and mental health problems. SCOTUS has established a right to health care for prisoners and has protected some limited rights for women's reproductive care (2), but has never interpreted the Constitution as guaranteeing a right to health care for all Americans. In fact, the words "health," "health care," "medical care," and "medicine" do not appear in the Constitution. (3)
It is disingenuous to claim that health care is a right in the U. S. when we consider these inconvenient facts:

  • 35 million uninsured, plus another similar number underinsured.
  • The first question asked of us in seeking care is "what is your insurance?"
  • 21 states have opted out of Medicaid expansion under the ACA.
  • Medicaid eligibility and coverage varies widely from one state to
  • another, in many cases falling far short of necessary care.
  • As the costs of insurance and health care continue to rise and shift
  • more to patients, a growing part of the population cannot afford either and forgo seeking care.
  • More than 40 million Americans now have an account in collection for medical debt. (4)

This situation stands in sharp contrast to elsewhere in advanced societies. Healthcare has been recognized as a right since 1948 when the General Assembly of the United Nations adopted a Universal Declaration of Human Rights including access to health care. (5) The right to health care was also later adopted by the World Health Organization (WHO) in its Declaration on the Rights of Patients. (6) As a result, most of Western Europe, Scandinavia, the United Kingdom, Canada, Taiwan, and many other countries have one or another form of national health insurance assuring access to care for their populations. Here we spend twice as much and still have no universal access to health care.

Can we ever see this country coming around to universal access to health care based on medical need, not ability to pay? The record shows that we never can, or will, as long as we permit corporate stakeholders in our medical-industrial complex to call the shots, and as long as they succeed in perpetuating our exploitive for-profit system. There is a fix -- single-payer national health insurance, as embodied in H. R. 676, Expanded and Improved Medicare for All.

To read John Geyman's new book on Obamacare:
How Obamacare is Unsustainable: Why we need a single-payer solution for all Americans.


References:
1. Obama, President Barack. Read Obama's full remarks on Supreme Court Ruling. U. S. News.

2. Curfman, G. King v. Burwell and a right to health care. Health Affairs Blog, June 26, 2015.

3. Ruger, JP, Ruger TW, Annas, GJ. The elusive right to health care under U. S. law. New Engl J Med, June 25, 2015.

4. Hillebrand, G. Consumer advisory: 7 ways to keep medical debt in check. Consumer Financial Protection Bureau, December 11, 2014.

5. Adopted by the General Assembly on December 10, 1948. Printed in: von Munch, I, Buske, A. (eds). International Law: Essential Treaties and Other Relevant Documents, 1985: 435ff.

6. Carmi, A. On patients' rights. Med Law 10 (1): 77-82, 1991.