By: Anel Morales
Regardless of its shortcomings, health care reform in the U.S. has opened up access to health care for millions of people previously excluded from critical health services. However, immigrants, both documented and undocumented, have not shared equally in this opening of the system. The international human rights framework offers one perspective from which to view the effects of the exclusionary nature of the reform.
Two important documents, both published in 2010, attempt to apply the international human rights framework to the situation of immigrants, both documented an undocumented. Drawing on a variety of treaties, covenants and other sources of international law, The Boston Principles on the Economic, Social, and Cultural Rights of Noncitizens (“The Boston Principles”) and The International Migrants Bill of Rights (“IMBR”) summarize the legal framework for the protections of noncitizens and migrants. These principles draw on some international treaties and standards that are legally-binding on the U.S., but they also include rights that the authors believe should be adopted as international human rights law. The Boston Principles and the IMBR both provide an extensive blueprint of rights for noncitizens and migrants in all legal practice areas using binding law and aspirational principles, which have not yet been recognized in treaties that have been ratified by the United States.
One way to examine the value of these documents is to consider their relevance to the highly controversial question of immigrant access to health care in the United States. Since both documents draw on essentially the same sources in international law, they provide relatively similar language related to immigrant’s access to health care. Both state that “all persons, including [noncitizens and migrants], have the right to the enjoyment of the highest attainable standard of physical and mental health.” They specifically provide that noncitizens should also have equal access to health care and do not recognize distinctions based on immigration status. The IMBR further includes equal access to preventive, curative, and palliative health services by drawing on several international and regional human rights treaties that enumerate access to these critical health services.
Also in 2010, the U.S. Congress passed a comprehensive reform of the national health care system, the Affordable Care Act (“ACA”). The ACA was designed to establish universal health care for “all Americans” and establish a broad “right” to health care, but it merely continued to restrict coverage for immigrants. The ACA bars immigrants who do not have lawful immigration status from gaining access to health care insurance, which includes DREAMers and the millions of undocumented immigrants residing in the United States. This large population of immigrants arguably contributes to our economy and considers the U.S. their home, but due to their lack of immigration status, they are not considered eligible for the “universal” health care promised by the ACA. This treatment certainly does not conform to the international standards outlined in the IMBR and the Boston Principles.
Moreover, even most documented immigrants (“qualified non-citizens” as they are referred to in the ACA) who have been granted immigration status for less than five years at the time of their health care application are ineligible to receive Medicaid under the ACA. To address this problem, the ACA provides that noncitizens with incomes below 100% of the federal poverty line, $11,880 ($24,300 for household of 4) may receive tax credits and subsidies for the purchase of some form of health insurance on the private market. However, this does not guarantee access and may not be a viable solution for many low-income immigrants due to the high cost of private insurance.
In light of the negative practical effects of the ACA on noncitizens, several scholars have proposed different ways to remedy the exclusion of immigrants from health care services. One partial solution would be to provide health care to undocumented children, who can currently only receive the very limited and expensive care provided in emergency rooms. This limitation does not allow access to pediatricians who can provide specialized medical attention.  There is a strong argument that providing care to these children, especially preventive care, might well reduce health care costs. Similarly, some propose amendments to the ACA to include basic health coverage for undocumented immigrants. Again, the argument is an economic one that such a change would help to relieve state budgetary burdens, especially public hospital budgets.
These types of alternatives may provide a way to close the gap that currently exists between immigrant access to health care in the U.S., and the hope that noncitizens will possess “the right to the enjoyment of the highest attainable standard of physical and mental health,” as described in The Boston Principles and the IMBR. These documents may not be binding law, but the notion that international standards include a right to adequate healthcare for all can be useful in helping to plant the seed for litigation arguments or public policy changes that immigrants desperately need in this country.
 Both documents use different terminology. Noncitizens are foreign-born individuals living in the United States who have not obtained citizenship, including both lawfully present immigrants and undocumented immigrants. Migrant is a term commonly used in Europe and means someone who is in the process of relocating to another country or place, or someone who has already moved.
Anel Morales is a third-year law student at Northeastern University School of Law.