The United States Constitution provides for a variety of rights — from bearing arms to free speech — but what about a right to health care? Nope, that’s not one of them. And while the Supreme Court has found rights to privacy, to bodily integrity, to refuse medical care and to terminate a pregnancy, there is no definitive obligation to provide health care to U.S. citizens.
According to the authors of a recent paper entitled “The Elusive Right to Health Care under U.S. Law,” published in the New England Journal of Medicine, health care rights in the U.S. are incomplete, to say the least. The three authors provide an interdisciplinary look at the issue, approaching it from ethical, legal and health policy perspectives.
“The Affordable Care Act attempted to fill in the gaps, but the patchwork is incomplete,” says lead author Jennifer Prah Ruger, PhD, MSc, MA, MSL, an associate professor of Medical Ethics and Health Policy in Penn’s Perelman School of Medicine.
The authors argue that even with programs like Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), the Emergency Medical Treatment and Active Labor Act (EMTALA) and now the Affordable Care Act (ACA), the U.S. is lacking a comprehensive approach to health care.
“These programs only apply to certain groups of people,” Ruger says. “We need to equalize access to quality care across the country, not just base care on things like age, geography and income.”
From a Constitutional law perspective, the authors write that historically, there’s been a bigger emphasis on negative liberties than positive guarantees. For example, the Supreme Court hasn’t created any sort of positive right to funding or health care access through its decisions on cases having to do with birth control or abortion. Instead, it has strengthened its stance to leave these “negative liberties” up to individuals.
The authors suggest that “contemporary health care involves interconnectedness and resource allocation” because “ individual health care spending and insurance choices affect other people,” along with other public health realities like the spread of disease. This is especially true now that the Supreme Court has ruled in King v. Burwell to allow federal subsidies for states that don’t have state-based health insurance marketplaces set up, reinforcing broad access to health care.
“As we suggest in our article, the Supreme Court’s decision properly construes the Act to provide insurance subsidies to all qualified Americans, no matter in which state they live,” said co-author Theodore W. Ruger, JD, who will become dean of the Penn Law School on July 1. “This ruling ensures that the Act’s primary goal of health care access is not subverted.”
However, according to co-author George J. Annas, JD, MPH, chair of the department of Health Law, Bioethics and Human Rights at Boston University, “The American ‘right to health care’ means that Congress, not the Supreme Court, should determine how the federal government should finance it.”
The authors contend that even as the ACA has attempted to provide a much-needed health care solution, it remains an incomplete answer. “What we really need is to identify what’s lacking, historical trends and what works in other countries, in order to build a foundational system to address the issue,” Jennifer Prah Ruger adds.
While the authors agree that the Supreme Court is not the ultimate solution, it does have the power to either help advance or hinder the process of guaranteed health care rights in the U.S.