By Mary Slattery
Despite the clear presence of a human right to health in the International Covenant on Economic, Social and Cultural Rights (ICESCR), there is no fundamental right to health or health care under United States law. Since it has not ratified the ICESCR, the US does not consider itself to be bound by the covenant’s provisions.
For the US to recognize a given right nationally, reference to it must be found in the Constitution itself or its Amendments, the first ten of which are known as the Bill of Rights. While state constitutions also guarantee some additional rights, the existence of those rights is confined to that state. There is no explicit or implicit reference to a right to health or health care in the federal Constitution however. Even many things that are colloquially referenced as a right, such the right to water or the right to education, are not recognized as fundamental rights in the federal context. The U.S. only recognizes rights of equal access to water and education, such that unless there is a very compelling reason, the government may not deny access to those people who are from a protected class any more than they do the rest of the population. This protection is found in both the Equal Protection clause of the 14th Amendment and the Equal Protection clause of the 5th Amendment.
The passage of the Affordable Care Act (ACA) in March 2010 gave many the impression that access to healthcare was now a right in the United States. This is understandable, given legislators’ frequent pronouncements that “everyone” would now have healthcare, that this right was for “all Americans,” and now the US “will join the community of nations that believe that the people who live within them are deserving of decent health care, all of them, regardless of their financial situation.” The access provided by the ACA is a legislatively-created statutory right, however, not a constitutional right.
Prior to the ACA, healthcare in the US was primarily a service for purchase. Insurance was most commonly bought privately or through employers, and the exorbitantly high costs of health care made it incredibly difficult for individuals to otherwise afford health expenses. Certain government programs, such as Medicaid and Medicare, heavily subsidized the payments made by some vulnerable populations.
Yet the cost of the insurance was still too high for much of the US population, which did not qualify for government programs, so many lacked any sort of health insurance. The ACA aimed to change that and create universal healthcare coverage by requiring insurers to offer more affordable insurance based upon the purchaser’s income level and making purchase of health insurance mandatory for all. Health care was to remain a service for purchase, but the ACA put in place reforms to promote the affordability of that purchase for all.
Looking at the experience of one group of people under the ACA—noncitizen immigrants to the US, for example, is one way of determining the extent to which the goal of universal care has been achieved. Despite the ACA’s goals and rhetoric in this regard, noncitizens continue to be excluded from the universal health care program. This exclusion extends not only to undocumented immigrants, but also to Legal Permanent Residents (LPRs) in their first 5 years of residency. During that time, those legal residents of this country are ineligible for Medicaid.
Two different rationales are commonly used to argue that noncitizens are undeserving of health insurance and therefore should be excluded. The first is that noncitizens are free-riders who fail to pay into the health insurance system. This view is grounded in our unique notion of health insurance not as a right, but as something you only get if you can afford to pay for it. Furthermore, it seems to stem from the belief that if noncitizen immigrants were to be eligible for government subsidized healthcare in the US, they would arrive in unmanageable numbers to unfairly take advantage of the program. This is contradicted by the fact that LPRs do pay taxes which financially support our universal healthcare system, as do many undocumented immigrants. The second justification for the exclusion of noncitizens is precisely that they are not citizens, and the universal healthcare program is a privilege reserved exclusively for U.S. citizens. However, this is in conflict with the concept that health insurance is a product that anyone may purchase and not a right tied to our Constitution.
The prevalent conception of health care as a product for purchase and therefore a privilege, not a right, is a key impediment to making health care universal in the United States. Noncitizens disproportionately suffer the effects of this exclusion. Unless we recognize the right to health care of all living within our borders, it will be difficult to guarantee noncitizens access to health care that many citizens feel that they themselves do not have.
Andrapalliyal, Vinita. “Healthcare for all”?: The Gap Between Rhetoric and Reality in the Affordable Care Act. UCLA Law Review. 61 UCLA L. Rev. Disc. 58 (2013).
Wolbert, Samuel. Universal Healthcare and Access for Undocumented Immigrants. Pittsburgh Journal of Environmental and Public Health Law. 5 Pitt. J. Envtl Pub. Health L. 61 (Winter 2011). http://pjephl.law.pitt.edu/ojs/index.php/pjephl/article/view/23
Parmet, Wendy E. Who’s in?: Immigrants and Healthcare. The Oxford Handbook of U.S. Healthcare Law. (July 2015). http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199366521.001.0001/oxfordhb-9780199366521-e-48
Mary Slattery is a second-year law student at Northeastern University School of Law