1-1 Discussion: Unfair Experience

1-1 Discussion: Unfair Experience

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1-1 Discussion: Unfair Experience

The Elusive Right to Health Care under U.S. Law

Ruger Jennifer Prah  Ruger, Theodore W  Annas, George J . The New England Journal of Medicine ; Boston  Vol. 372, Iss. 26,   (Jun 25, 2015): 2558-2563.DOI:10.1056/NEJMhle1412262


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There is no right to health care in the U.S. Constitution, but Congress has incrementally established health care rights through legislation, including laws creating Medicare and Medicaid, the Emergency Medical Treatment and Active Labor Act, and the Affordable Care Act.

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Is there a right to health care in the United States? No U.S. Supreme Court decision has ever interpreted the Constitution as guaranteeing a right to health care for all Americans. The Constitution does not contain the words “health,” “health care,” “medical care,” or “medicine.” But if we look deeper, a more nuanced picture emerges. The Court has found rights to privacy,1 to bodily integrity,2 and to refuse medical care3 within the vague right to “due process” contained in the Constitution. The Court has also constructed a right to decide to terminate a pregnancy,4,5 although it has also ruled that the government has no obligation to subsidize the exercise of this right6,7 (Table 1). When this line of cases is considered together, it would appear that the U.S. Constitution provides scant affirmative obligation to provide health care.

Despite the absence of a universal right to health care in the Constitution, Congress and the Supreme Court have incrementally crafted an incomplete web of health care rights during the past 50 years. In prisons and emergency rooms across the country, physicians and medical institutions have for decades been required to provide medical care. In a 1976 landmark decision in Estelle v. Gamble, for example, the Supreme Court found a right to adequate medical care for prisoners grounded in the Eighth Amendment of the Constitution.8

To locate federal protection of a more universal right to health care, one must look past the judicial branch to the rights created by Congress. Through its core constitutional authorities to tax and spend and to regulate commerce, Congress may enact statutes that establish and define the rights of individuals to receive health care regardless of their ability to pay. In 1986 Congress did just that, passing the Emergency Medical Treatment and Active Labor Act (EMTALA), guaranteeing at least a modicum of medical attention for all who arrive at an emergency department in a hospital that accepts Medicare.9 Congress similarly operationalized an incremental health care rights framework in establishing Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), and most recently the Patient Protection and Affordable Care Act (ACA) (Table 2).

These statutes create an incomplete set of rights that reflect the inconsistency at the core of U.S. health care policymaking. Some programs, such as Medicare and EMTALA, are federal, and others, such as Medicaid, are federally subsidized and state-based, but all remain incomplete. Medicaid is rife with dramatic variation from state to state and from one needy group to another. For Medicare, there are geographic variations in payment levels, and Medicare does not include nursing home care or other long-term care. Courts have construed EMTALA, which includes only emergency care and care for women in active labor, to permit diverse levels of care in different hospitals. On the eve of the ACA’s passage, the panoply of rights to health care in the United States could accurately be described as incomplete and incremental, with considerable gaps and shortfalls.

The ACA and the subsequent 2012 Supreme Court decision upholding most of its provisions represent substantial but incomplete steps toward operationalizing a more robust and complete right to health care. They also highlight our inconsistent framework of health care rights.

American Constitutional Law and Health Care Rights

American constitutionalism has championed negative liberties more than positive rights. The U.S. Supreme Court has recognized rights related to health care in ruling that the Constitution confers a right to privacy grounded in the Due Process Clause of the Fourteenth Amendment. According to the justices, laws implicating fundamental rights (including a right to privacy) are subject to a heightened standard of review referred to as “strict scrutiny.” This means that the government must demonstrate a “compelling state interest” to interfere with the exercise of an individual’s fundamental rights. Applying this standard, the Court in 1965 in Griswold v. Connecticut1 invalidated a Connecticut law that prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.”10 The Court by a 7-to-2 decision ruled that the law violated the “right of marital privacy.”1 Justice William O. Douglas wrote in the majority opinion that the right to privacy is a right to be “protected from governmental intrusion.”1

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