Why isn’t health care a US right?

By Laura H. Kahn | November 14, 2011

The US Supreme Court will likely decide on the constitutionality of President Barack Obama’s health care law, the Patient Protection and Affordable Care Act — which requires American citizens to either buy health insurance or incur a penalty — sometime this session. The 11th Circuit Court of Appeals in Atlanta ruled against the law, while other appeals courts, including one in Cincinnati, have either rejected the case or upheld the law.

The Commerce Clause vs. the general welfare. So far, the Supreme Court has never interpreted the Constitution as requiring the right to health care even though Article 1, Section 8, gives Congress the power to levy and collect taxes to “pay the Debts and provide for the common Defence and general Welfare” of the citizenry of the United States. Dictionary.com defines “welfare” as the “good fortune, health, happiness, [and] prosperity” of a person, group, or organization. Wouldn’t health care qualify under this clause?

In fact, it already has. Congress has previously used this clause to defend its passage of Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP), which provide funding for health care services to the elderly and to those who cannot afford them. However, rather than provide government funds — as is the case for Medicare, Medicaid, and CHIP — the Obama health care law requires individuals to purchase health insurance. The lawsuits filed against the legislation challenge, among other things, the authority of Congress to enact an individual requirement to purchase health insurance under the Commerce Clause, which grants legislators the power to regulate interstate commerce.

According to Kim Lane Scheppele, professor of public affairs and director of the Program in Law and Public Affairs at Princeton University, if the Supreme Court does take on the case, it will most likely consider the constitutionality of congressional power to regulate interstate commerce — and not the constitutionality of the right of Americans to general welfare. Therefore, one argument advocates of the health care law make is: Interstate commerce might be adversely affected if an individual cannot move to a new job in another state, because he or she would lose personal health care insurance.

Another interstate-commerce-based argument that proponents of the Act make: It lowers spending. National health spending in the United States is enormous and accounts for nearly 17.6 percent of the GDP. Most of the health industry is composed of large corporations that operate across multiple states, so the Act is relevant from a purely economic perspective. The insurance mandate spreads the risk pool by making everyone — healthy and sick — buy health insurance, which in turn lowers insurance costs and allows more individuals access to health care.

OK, it’s rather convoluted so far, but it gets worse:

The argument against congressional power to mandate health care through the interstate Commerce Clause is that it would then give Congress unlimited scope in forcing people to buy insurance — or, for that matter, anything related to their health. By ruling the Obama health care law constitutional, opponents argue, the Supreme Court would, in essence, grant Congress the power to force people to buy everything from fruits and vegetables to vitamins and gym memberships — and that of course would be the end of limited government. According to conservatives, the federal government should be responsible for only what is explicitly written in the Constitution: external threats, national defense, commerce, patents, a system of weights and measures, etc.

Well, I would argue that nothing menaces national security more than one particular external threat: a deadly, foreign infectious disease. And the only way to ensure the safety of the citizens against an infectious disease is to have a robust, accessible health care and public health system that is part of the national defense. The federal government should be responsible for these services.

Naturally, there are many more Commerce Clause-based arguments for and against the Act, but — for those of us who aren’t lawyers or constitutional experts — the Talmudic complexity of all of them can be overwhelming.

So, simply put: The 6th Amendment guarantees the right to a lawyer. Why isn’t there an explicit right to a doctor? In a study of 165 different national constitutions, 75 were found to have a right to health care. For example, Southeast Asian nations like South Korea, Indonesia, and Thailand include the right to health care in their constitutions. And the 1948 Universal Declaration of Human Rights includes health as a human right. So why isn’t health care a right in the United States? Why isn’t the promise of “general welfare” enough to mandate health care for our nation’s people? Perhaps history will shed light on the matter.

Medicine in the late 18th century. The US Constitution was written in 1787, making it the second-oldest constitution in use by any nation. Of course, almost 225 years ago, the practice of medicine was primitive. Physicians, if they had any training at all, typically apprenticed briefly with a mentor. Medical treatments mostly involved bloodletting and purging. Lancets and leeches comprised much of the medical armamentarium. Unfortunately, these treatments were more likely to kill people than help them. So it is not surprising then that the Founding Fathers didn’t consider unequivocal access to medical care an important issue to include in the Constitution — because at that time, it wasn’t.

In addition, the Constitution was written about a century before Louis Pasteur and Robert Koch discovered the germ theory of disease, which revolutionized the practice of medicine and public health. Because the Founders didn’t know about the cause of epidemics, they relegated public health to the 10th Amendment, a state responsibility. I’ve written about the need to federalize public health because microbes don’t recognize political borders, and our current epidemic response system reflects this shortcoming.

Medicine in the 21st century. Today, fortunately, medicine is obviously very different from the bloodletting-and-leeches style of care practiced in the late 18th century. Scientific and medical knowledge exploded in the late 19th and 20th centuries. Unfortunately, there’s a down side: Uninsured individuals without access to this state-of-the-art health care are now 25 percent more likely to die prematurely than those with health insurance. Even worse, the current economic crisis and high unemployment rate mean that there are far more uninsured individuals than ever.

Access to health care should be a top national security issue. One of my first columns was about the security concerns of the uninsured. The United States, with millions of people lacking access to health care, would find itself in an unprecedented and unmitigated disaster during a deadly pandemic.

The Constitution is a living document. Twenty-seven amendments have been added to the Constitution, 11 of them written and ratified in the 20th century. Certainly the framers of the Constitution recognized that societies change; after all, they acknowledged the importance of scientific discoveries by giving Congress the power to issue patents to scientists and inventors.

Some legislators believe that access to quality health care should be a right. Illinois Representative Jesse Jackson has introduced a bill for a constitutional amendment on this issue multiple times — each time, the bill has died. Conservative members of Congress are determined to keep the Constitution safely mired in the 18th century. Some opponents might cite the enormous societal costs that a right to health care would add, but the costs of the uninsured are enormous now. And, as previously stated, the more people without access to health care, the more vulnerable we are as a nation to the spread of deadly epidemics and bioterrorist attacks.

Recently, The New York Times Magazine ran a lengthy article examining if the nation is ready for bioterrorism. The answer was a resounding no — even though we’ve spent billions attempting to prepare for it . What the article didn’t mention is that the United States will never be ready for bioterrorism as long as access to health care remains unrecognized as the national security issue that it is and as long as millions of Americans don’t have access to it.

So, until a right to health care is amended to the Constitution, the best we can hope for is legislation — such as the one that is currently under legal attack. Will the highest court in the land find the Obama health care law unconstitutional? Assuming the Supreme Court accepts the case, we’ll have to wait until June 2012 to find out.

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