Health Care in the United States: A Right for All or None?

By Mary Slattery


Alameda Health Consortium

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.


ACA Signed into Law

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.

health-exchangeYet 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.

health-care-for-allTwo 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).

Parmet, Wendy E. Who’s in?: Immigrants and Healthcare. The Oxford Handbook of U.S. Healthcare Law. (July 2015).

Mary Slattery is a second-year law student at Northeastern University School of Law

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Lack of access to health care for immigrants in the United States: A human rights violation?

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.[1] 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.[2]

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.[3]

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.[4] 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.[5] 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. [6] 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.

[1] 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.

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A Desire to Give Voice to the Voiceless

Emmanuel Sam, a native of Sierra Leone and a Masters of Law student at Northeastern University School of Law, was awarded a PHRGE Fellowship this spring to work with the Raoul Wallenberg Institute for Human Rights and Humanitarian Law (RWI) in Lund, Sweden. In this video produced by RWI, Emmanuel talks about the roots of his commitment to human rights and the ways he hopes his legal education will help him live out this commitment. He frames this commitment as “…a desire to give voice to the voiceless.”

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Still Dazzled by the Facts and Figures

By: Alefiyah Ezzi, PHRGE Fellow at Oxfam America

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Photo credit: Jaclyn Sokol, CHANGE Logistics Coordinator, Oxfam America

My experience at Oxfam America over the past 11 weeks has been phenomenal. I gained knowledge about the corporate world and developed skills that I could not have within the walls of a classroom. I interned for the Private Sector Department which focuses on ways to harness the strengths and resources of the private sector to pro-poor ends.

Recently, Oxfam released a tax media brief which uncovers how the top 50 U.S. public companies avoid a big chunk of their fair share of taxes through tax havens. As a continuation of the research exposed in this media brief, one of my larger tasks was to conduct research on tax specific lobbying and political capture in the finance, real estate and insurance (FIRE) sector, the pharmaceutical sector, and oil and gas sector. These three sectors make up a big part of the U.S economy and, hence, all together they pay some of the highest amounts in taxes to Uncle Sam.

Having limited prior knowledge on how the U.S. tax system works, I was very enthusiastic and yet a little apprehensive about this task. However, this was my moment to step up and take the plunge. Little did I know how fascinating this topic was! This research had me hooked for at least 5 weeks.

Did you know?

  • The FIRE sector is the third highest spender on lobbying and has spent almost $7 billion on lobbying between 1998 and 2015.[1] The FIRE sector has also been the leading source of campaign contributions and ranks number one for contributing the highest amount of money during 2015-2016 election cycle – $426 million (at least 5 times more than the amount donated by the health care sector).[2]
  • During the 112th congress, for every $1 the oil and gas industry spent on campaign contributions and lobbying, it got back $103 in subsidies- a 10,200% return on political investment.[3]
  • Many companies within the pharmaceutical industry have exploited tax loopholes to avoid U.S. taxes. At least ten huge corporations in the pharmaceutical industry are culpable for corporate inversion.[4] Many pharmaceutical corporations stash away billions of dollars in offshore accounts.[5] These are the same corporations who actively lobby the federal government on issues related to corporate tax loopholes.[6]

Apart from the above, I also wrote a research piece on tax specific lobbying by the U.S. Chamber of Commerce—the biggest Trade Association in the U.S. The facts and figures I came across were mind boggling. For example, since 1998, the Chamber has spent more than $1 billion dollars on lobbying – the first organization to cross that milestone.[7]

During the last few weeks on my co-op, my big task was to gather data on corporate contributions to the national conventions; this was also a potential extension to the corporate tax research.[8] I prepared a memorandum which outlined the scope of research and am currently putting together all the required data using different sources including grappling with company 10-K’s. I am pretty sure that by now I have developed a new sense of attention to detail.

All in all, my time at Oxfam America has been an enormous learning curve and as sad as I am about leaving, I am very excited about the next opportunities that will come my way.

[1] Top Spenders, Centre for Responsive Politics,

[2] Totals by Sector, Centre for Responsive Politics,

[3] Fossil Fuel Funding to Congress: Industry influence in the U.S., Oil Change International,

[4] Tax Inversion, How U.S. Companies Buy Tax Breaks (Nov. 23, 2015),

[5] Citizens for Tax Justice, Shell Games 2015 (2015) The Use of Offshore Tax Havens by Fortune 500 Companies (2015),

[6] Lobbying, Centre for Responsive Politics,; Lobbying profiles of different pharmaceutical companies and the tax specific issues that they lobbied.

[7] Carrie Levine, The Chamber’s Bad Bet on the GOP (Mar. 30, 2015),

[8] In an effort to influence public policy, which includes tax reforms, large corporations donate significant amounts of money to the national conventions and as a result, corporations and their lobbyists enjoy a wide range of benefits including direct interaction with the lawmakers. Party Conventions Are Free-For-All for Influence Peddling, Public Citizen,

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A Fighting Chance: Legal Responses to the Humanitarian Border Crisis

By: Jacqueline Kelley, PHRGE Fellow at South Texas Pro Bono Asylum Representation Project (ProBAR) in South Texas

Child on Border Fence blog photoI sat across from Jonathan as he told me a lifetime of stories. Abandoned by his mother at age three, Jonathan, from Michoacan, Mexico, was raised by a father who worked for drug traffickers and brutally abused him. After Jonathan dropped out of school and ran away from home, another drug cartel targeted him to recruit him into their ranks. Even though he resisted recruitment, Jonathan was arrested by the Mexican military on unfounded allegations of criminal behavior. He was then tortured before prosecutors even brought formal charges against him. When he was released after six months for lack of evidence, Jonathan faced a heavy choice: return to his abusive father or try to make it on his own on the streets, where the cartels would surely target him once more. That is when he made the choice to head to the United States, to save his own life. After two hours, I looked down at my pages of notes detailing Jonathan’s lifetime of struggles—those of a fifteen year old boy.

Every year, thousands of unaccompanied children attempt to cross into the United States through the Mexican-U.S. border—and in recent years, thousands make the attempt every month. The humanitarian crisis of 2014 that brought a massive influx of Central American and Mexican migrants, many of them children, has barely subsided as we approach mid-2016. Some migrants look for ways out of crippling poverty, in many cases caused by U.S. economic policies that stunt opportunity. Some are looking to reunite with parents or other loved ones whom they have not seen in years; harsh immigration laws make legal family reunification either an exceptionally lengthy process or, more often, an impossible one. Many are quite literally fleeing for their lives—running from ever-growing gang and cartel violence coupled with the inability or unwillingness of their home countries’ authorities to protect them. To call the choice to migrate under these circumstances a true “choice,” seems starkly inaccurate. When your life is on the line, is migration a choice? Did Jonathan have a choice?
Since early March, I have worked alongside ProBAR in the Rio Grand Valley of South Texas in the struggle to give detained migrants a fighting chance as they battle through our draconian immigration system. ProBAR (South Texas Pro Bono Asylum Representation Project) provides free, direct legal services to adult and minor asylum seekers detained by the U.S. government in South Texas, and coordinates national pro bono volunteer efforts to serve migrants who relocate to other parts of the country. For my first six weeks in Texas, I interned for the Children’s Project; there, I worked on the immigration cases of minors, like Jonathan, who are detained in local Office of Refugee Resettlement “shelters” and are in active deportation proceedings. ProBAR Children’s Project works to reunify migrant children with loved ones while identifying potential legal relief, coordinating with national pro bono partners, and providing full-scale legal representation to locally-released children and those facing imminent deportation.Detained Youth and Families blog photo

In mid-April, I moved to ProBAR’s Adult Office, which serves detained asylum seekers primarily at the Port Isabel Detention Center in Los Fresnos, Texas. I spend long days in Immigration and Customs Enforcement (ICE) detention, identifying legal relief, participating in Know Your Rights presentations and providing legal assistance in immigration cases—from drafting applications and gathering evidence, to prepping testimony for hearings and filing court motions. For many detainees, the time they spend in visitation rooms with ProBAR staff and volunteers may very well be the only opportunity they have to tell their stories and document their legal claims. Time with ProBAR staff may also be the only human contact they will have for months, aside from time spent with other detainees and detention/deportation officers. ProBAR believes that detained migrants should never have to fight deportation alone.

There is no right to counsel in immigration removal proceedings, despite the fact that the penalties associated with losing one’s claim—detention and deportation—are some of the worst that human beings can face. Because of the sheer number of individuals requiring assistance nationally, many migrants will receive no legal assistance whatsoever and will be returned to countries where they fear persecution, violence and even death. And the grim realities of our harsh immigration system, where the deck is stacked against migrants from the outset, ensure that even migrants with full representation and solid legal claims may still face deportation. However, due to the coordinated efforts of organizations like ProBAR, thousands more migrants know their rights, put forth strong claims for relief and have a fighting chance to emerge through the system victoriously—with stability and safety waiting on the other side.

For more information on the critical work of ProBAR,

Watch the video: The 25th Anniversary of ProBAR: Pursuing Justice, Changing Lives.

Or Read about ProBAR’s work.

For more information on the need for protections for children asylum-seekers, notably Central American and Mexican minors fleeing gang violence, see the UNHCR’s resources, including its report about the migration crisis, “Children on the Run.”

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The Experience of Working in an Established Human Rights Institution

By: Emmanuel Sam, PHRGE Fellow at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Lund, Sweden

Made with Square InstaPic

While considering co-ops, I always wanted to get an international experience, especially in an institution with a human rights focus. When the time came for co-op, I decided to try my luck and applied for a PHRGE fellowship to work at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law. I did not expect much though, because at first glance, I saw that the PHRGE Fellowship was very competitive. I was so excited when I was called for an interview and, after a few days, was told that I received the fellowship. Finally, I had my dream of doing my co-op overseas.

From the very first day at the Raoul Wallenberg Institute, everyone welcomed me as a member of the team and genuinely expected me to make a contribution. I hit the ground running, working on a memo about the role of Nordic cities in the human rights framework. My supervisor then told me that the memo would be developed into a concept paper.

My second project was to work on a memo about National Human Rights Institutions (NHRIs). The memo addresses the Sub-Committee on Accreditation’s procedure in assessing and analyzing NHRIs up to the threshold of grading them by A, B, and C statuses, using the Paris principles. NHRIs are independent institutions that are established by the domestic law of a given country. I worked on the accreditation process with specific reference to the procedure used in grading NHRIs.

I briefly worked on a pilot program for Zimbabwe in which I conducted research and wrote a memo. The memo addressed the constitutional alignment in Zimbabwe, the new provisions incorporated into the new constitution, and the parties involved in the process. The memo also addressed the independence of the judiciary in Zimbabwe in relation to human rights.

Finally, I am working on hate crime and hate speech with one of the institute’s Head of Programs. I am writing a report on my findings about the causes of hate speech and how hate speech sometimes gives rise to hate crime. I also focused on the role of the press in hate crime situations in relation to freedom of press. I have looked at case studies on Rwanda, the Holocaust, Kenya and Myanmar. I hope to complete this last project for my co-op before heading back to the US.

My experience in Sweden has been great. The people I have met and interacted with are very friendly. I have traveled around Europe on the weekends, visiting France, Italy, Denmark and Germany. The climax of the excitement of my internship was when I was announced as this year’s LL.M. commencement speaker at Northeastern University School of Law’s commencement on May 27, 2016. I am very happy for such a great honor. Lastly, I am very grateful to PHRGE for giving me such an opportunity to pursue my career objectives.

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Understanding Family Planning – Poor Medical Care, Forced Sterilization and the Genocide of Tribal Peoples and ‘Backward Castes’

By: Morgan Wilson, PHRGE Fellow at Human Rights Law Network in Delhi, India

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Sterilization patients recuperating on the floor of a meeting room in the Basta Community Health Centre


I recently completed a co-op assignment with the Human Rights Law Network (HRLN) in Delhi, India. I worked with the Women’s Health and Reproductive Rights Initiative (WHRRI) researching maternal and infant deaths and the implementation (or lack thereof) of the Indian Public Health Standards (IPHS) in Odisha state. My travels took me to two villages – one in the Basta region, Balasore District and the other in the Banki region, Cuttack District, where my supervisor and I met with two families impacted by substandard medical care.

These families, and most of the people served by WHRRI, were from the so-called ‘Backward Castes’ (BC), Scheduled Tribes (ST) or Scheduled Castes (SC). In India’s complex caste system, these are ‘protected’ classes, people who through generations of discrimination and isolation have become socio-economically disadvantaged.

At our first meeting, we spoke with the mother and mother-in-law of a woman who died of postpartum hemorrhaging (PPH) after childbirth. In this case, the woman bled out on the delivery table in front of her family as the doctor stood idly by. Although the decedent’s family begged the doctor to administer lifesaving treatment, he refused. The doctor decided instead to chastise the decedent in her final moments of life, making clear that his refusal to administer care was punishment for having a third child as a member of a ST. The impact of his decision is felt not only on the three children the decedent left behind, but on the father who is now a widower, and the mother who was forced to bury her child prematurely.

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Delivery table in the labor room of the Dampara Community Health Centre


Similarly, at our next interview, we listened to a grieving father explain that his daughter’s only child was killed by a disgruntled doctor whose aggressive use of forceps punctured the newborn’s head, resulting in a slow painful death. In this case, the OBGYN insisted that she be paid 500 INR (roughly $7.40) to assist with the birth, even though healthcare is free. When the family explained that they were unable to pay the exorbitant fee, the doctor begrudgingly assisted in the delivery once it was clear the baby was in a difficult position. After the delivery, the doctor told the family “these things happen sometimes” and “there was nothing she could do” to save the child. As I later learned, stories like this are not uncommon in rural areas. Without access to legal aid organizations, many families are left without any recourse to confront negligent doctors.

Adding insult to injury, a tour of the medical facilities in Odisha revealed sterilization wards where BC/ST/SC women, no older than 23, were being sterilized through vigorous and vicious family planning campaigns aimed at decreasing their family sizes. In exchange for being sterilized, men and women are given monetary incentives by national and state governments for their participation in family planning programs. This form of coercion increases the number of people (particularly women) dying from haphazard procedures in healthcare institutions where IPHS are not fully implemented and doctors care more about meeting quotas and receiving awards than they do about helping patients. In this way, the government maintains control of BC/ST/SC people and ensures a smaller tribal population in the future.

Historically, BCs/STs/SCs were effectively excluded from attending medical school, resulting in a large portion of medical staff treating patients of different/lower castes/tribes. When doctors refuse to give care or are negligent in the administration of their duties, caste and tribe discrimination in both the medical and legal fields provide them with relative impunity. Sadly, if a victim or their family is successful in bringing a medical malpractice claim against a negligent doctor, oftentimes the result is that the state pays a pre-set amount of money to the family and the doctor is allowed to continue harming/killing patients. What this means on a basic human level is that BC/ST/SC people are being killed by the very people charged with their care. It comes as no surprise, when villagers explain they are afraid to utilize the free government medical facilities but are too poor to pay for private care, that the question is one of risk – stay home and hope for the best, or go to the government hospital where there is a high likelihood of substandard care and possibly death.

What I have taken away from the visit to Odisha, and my experience with HRLN, in general, is that there is a significant need for attorneys and volunteers to engage in human rights work. Otherwise, the most vulnerable populations will continually be subjected to acts of violence and terrorism. Terrorism has taken on a very specific meaning in the post 9/11 age, but terror manifests itself in a myriad of ways. In the context of women’s health and reproductive rights in India, it is my contention that the forced sterilization of BC/ST/SC) women is, indeed, terrorism. Sanctioned by the national government and implemented through health service providers at the state and local level, mass sterilization becomes a form of genocide. Moreover, it is also an act of terror when doctors refuse to administer care to BC/ST/SC patients, thereby causing death or serious bodily harm.

The work that HRLN does in the field of women’s health and reproductive rights is necessary to ensure delivery of proper medical care, and critical for the livelihood of BC/ST/SC people. For more information about HRLN, please visit:

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