Abstract
This article explores the very limited cases historically in the twentieth century when human rights was used in American policy debate as a defending principle for the provision of government-guaranteed universal healthcare. It discusses these cases and examines various reasons as to why this is so, noting the major emphasis in American political culture on negative rather than positive liberty. It examines the shift in political culture from the Roosevelt, Truman, and Johnson eras that embraced social and economic rights and defined them as such to the post-Reagan era when conservative ideologies were ascendant. These ideologies reject the legitimacy of social and economic rights and remain dominant in the United States. It comparatively situates the American refusal to consider universal healthcare a human right with European affirmations of such a right and to those found in various treaties of international law. Finally, it analyzes how Barack Obama’s Patient Protection and Affordable Care Act—while not adopting the rhetoric of human rights does, functionally, enable as a matter of public policy an entitlement to healthcare.
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Notes
Aside for the right to treatment in a hospital emergency room in response to a life-threatening immediate emergency which is not constitutionally guaranteed but is mandated by US federal law. In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act, which prohibited hospitals from turning away impoverished patients from emergency rooms which had become an increasing problem across the nation. However, “Compliance has been questionable. Only 150 violations were found by government investigators in the first four years after the legislation; based on the best estimates, a million instances of patient ‘dumping’ would have occurred during this time, at least before the legislation went into effect. Only nineteen hospitals were penalized.” See Chapman, p. 267. Despite this law, many hospitals harass patients and their families before, during, and after emergency room treatment demanding that they pay for the costs of emergency services. For an excellent overview of the history of American healthcare public policy and politics see Quadagno, 2006. See also the latest and most comprehensive books analyzing healthcare reform policy in the United States up to and including the Patient Protection and Affordable Care Act; Starr, 2011 and Altman, 2011. For a detailed description and analysis of the Patient Protection and Affordable Care Act itself see McDonough 2011.
For an overview of healthcare policy in the United States, see Bodenheimer and Grumbach’s, “Understanding Health Policy: A Clinical Approach.” Please also consult Jacobs and Skocpol (2012) “Health Care Reform and American Politics: What Everyone Needs to Know”.
For this reason the Affordable Care Act does not provide universal healthcare provision—because many Americans will be allowed to opt out of it. However, because it provides government subsidies that make healthcare more affordable to economically disadvantaged Americans it does expand healthcare provision greatly and tens of millions of Americans who previously lacked health insurance will now be insured.
See Galewitz (2010), http://www.kaiserhealthnews.org/Stories/2010/March/22/consumers-guide-health-reform.aspx. Also see Lawrence and Skocpol, 2010.
Though technically not a ‘right’ in the strict legal sense, functionally, entitlements such as Social Security and Medicare which are guaranteed by the government and expected by citizens, are considered by many citizens to be a right.
This is also the case in international law. See for example the United Nations Convention on Social and Economic Rights, discussed later in the article.
Here, I am referring primarily to France, Germany, Britain Belgium, the Netherlands, Austria, and the Scandinavian countries. Spain, Portugal, and Greece share this philosophy but it came to fruition decades after those of the aforementioned countries due to extended periods of dictatorship post World War 2.
In particular, it expanded hospital and clinic construction, increasing access to healthcare substantially across the country. The Hill-Burton Act (Hospital Survey and Construction Act) of 1946 expanded construction of hospitals and improvements to hospitals, increasing access to medical care. Significantly, hospitals receiving these funds, which were large in number, were required to provide emergency treatment to the uninsured and subsidized treatment to the impoverished. See Altman and Shachtman, 111–121 for details. However, many hospitals ignored the law’s provisions which were often poorly enforced, if it all. This was particularly true in hospitals that followed formal or informal racist policies, segregating African-Americans and/or denying them care. Beatriz Hoffman details the ways in which the promise of this law often went unmet. See pages 71–89 of Hoffman’s (2012) Health Care for Some.
See also Ryan’s 2012 Republican National Convention Speech.
Ryan’s policies also neglect to increase financial aid to students to enable them to enroll in college and make higher education more affordable and accessible to middle class and working class Americans, thus undermining one of the most important pathways out of poverty and to upwards mobility. Ryan’s policies offer no substantive increase in resources to improve educational achievement in primary and secondary school either and to equalize educational opportunity across the nation.
However, such attacks during the Truman era were but one cause of Truman’s failure to win legislative passing of his healthcare reforms. Internal divisions within the Democratic Party played a major role in wrecking the chances of Truman’s legislation being passed. Southern Democrats committed to racist segregation feared that hospitals and clinics in the south would be forced to desegregate if universal healthcare was passed and so they vociferously opposed his proposed legislation. Fierce Republican opposition to the reform also played a role in preventing the passage of Truman’s legislation (Quadagno, 2006).
Wikipedia, http://en.wikipedia.org/wiki/Ronald_Reagan_Speaks_Out_Against_Socialized_Medicine
See also Lemann’s The New Yorker, “Kennedy Care”, http://www.newyorker.com/talk/comment/2009/09/07/090907taco_talk_lemann.
Ibid
It is important to note that although ideologies of limited governance overwhelmingly dominate American political culture amongst conservatives with regard to healthcare and government provision of social services many social conservatives (but not libertarians) do believe that the government should have an expansive role in the individual lives of citizens with regard to laws regulating bodily rights and interpersonal relations denying a woman’s right to have an abortion and denying equal rights to marriage and other legal protections and benefits to gays and lesbians. Furthermore, their concern with maximizing consumer choice does not extend to maximizing choice for indigent Americans as egalitarianism is not a priority for proponents of limited government.
Ibid.
Richard Nixon’s rhetoric and healthcare policy proposals demonstrated concern for equal opportunity. See his address to Congress on healthcare reform. Nixon offered a substantial expansion of health insurance which shares some similarities with both Clinton and Obama’s plans. Unlike Clinton’s, however, it did not provide universal coverage. But it did expand it to tens of millions of people who at that time were uninsured, and as such was an important attempt at increasing health insurance coverage in the United States. Stuart Altman and David Shactman devote a chapter to discussing Nixon’s proposed healthcare reforms which centered on an employer mandate to require all employers to offer full time workers health insurance, subsidized insurance to some poor Americans, and a benefit package that had deductibles and coinsurance but with limitations on these total expenditures. Hospital coverage and total annual doctor’s visits that were allowed were strictly capped and not as generous as many other health insurance plans. Altman and Shactman write, “Although the program had shortcomings, it was comprehensive in scope and a radical proposal for a conservative, Republican administration. It is striking to consider how much of its structure and provisions are similar to plans proposed thirty-five years later. Employer mandates, subsidized insurance for the poor, cost sharing, insurance pools, and catastrophic insurance have been included in nearly all subsequent plans.” (p. 43)
However, due to limited financial resources virtually all governments use some forms of means testing for government welfare provision because they need to target government resources effectively. Universal welfare benefits, for example, do help to reduce the stigma of the poorest and most marginal sectors of society but they also involve a waste of funds because middle-class and upper-class citizens do not need these provisions and they make little real impact on their economic and social welfare. Furthermore, spending massive amounts of funds on universal welfare provisions (such as home heating and free bus passes for the elderly in the UK, irrespective of income status) deprives the government of the economic resources needed to help lift the poorest sectors of society out of poverty.
For more on how managed competition rather than government regulation alone can lower healthcare costs and improve the quality of healthcare and raise the number of insured Americans see Alain C. Enthoven’s ‘Consumer Hoice Health Plan’ in the New England Journal of Medicine. That article addresses the points raised in the next section of the paper on how principles of free market libertarianism can be effectively married to human rights commitment to universality and affordability. See also his articles from 1989, 1993 and 2005.
These charges drive up the costs of both private insurance and Medicare, but particularly place a huge strain on the financial viability of Medicare.
The French Lesson in Healthcare. Businessweek.
http://www.businessweek.com/magazine/content/07_28/b4042070.htm
World Health Organization Assesses the World’s Health Systems. http://www.who.int/whr/2000/media_centre/press_release/en/index.html
See also footnote 53.
There are, however, single payer systems such as Sweden’s and Spain’s which yield strong results as well and assessing both qualitatively and quantitatively which universal healthcare systems deliver the best outcomes is an art rather than a science. What can be said with confidence is that universal healthcare systems that incorporate market competition consistently deliver outcomes as good and often better than single payer system’s such as Britain’s NHS.
For more on the German healthcare system, the role of managed competition within it, and reforms made to it to bring down costs while ensuring quality see Markets and Medicine by Susan Giamo, pages 86–147.
Around 10 % of Germans opt for insurance offered by private, for profit companies.
‘Sick Around the World.’ Five Capitalist Democracies And How They Do It. http://www.pbs.org/wgbh/pages/frontline/sickaroundtheworld/countries/
T. R Reid, Healing of America: A Global Quest for Better, Cheaper, and Fairer Care. (New York: Penguin, 2010)
T.R. Reid, “No Country for Sick Men.” Newsweek, September 12, 2009. http://www.newsweek.com/2009/09/11/no-country-for-sick-men.html#
For more on managed competition in the United States and Bill Clinton’s attempt to enable it through his healthcare reforms see pages 164–192 in Markets and Medicine by Susan Giamo.
This is particularly true in Scandinavia and the Benelux countries but is the case across Western Europe where universal healthcare is one of the fundamental pillars of the welfare state. In the UK the Tories have initiated reforms to the NHS (National Health Service) that are being met with skepticism by many as potential threats to its character; but the NHS remains the ‘third rail’ of British politics and any attempts to undermine its universal and public nature are likely to be widely rejected due to wide scale support for the NHS across virtually all sectors of British society. The reforms themselves do not threaten the principle of universal, free, government provision of healthcare.
Switzerland is one outlier in Western Europe, having only created universal healthcare since 1996. It is a fascinating and unique case, because most of its healthcare insurers are private, for-profit companies. Due to tough government regulation Switzerland is able to offer universal healthcare coverage to citizens provided largely by private, for profit insurers. In this regard, the Swiss model may have important lessons for the United States. These private insurers are not allowed to earn profits from government mandated basic healthcare packages, however, although they can earn profits from the sale of supplementary insurance.
German healthcare reforms maintain in place the quality of care, universal access, and affordability/free provision of healthcare for those who cannot afford it.
See Access and Choice by Melanie Lisac, et al. (2010). Also see,
Bachman (2012), http://nation.time.com/2012/08/16/health-insurance-switzerland-has-its-own-kind-of-obamacare-and-loves-it/
See Roy (2011), http://www.forbes.com/sites/aroy/2011/04/29/why-switzerland-has-the-worlds-best-health-care-system/
See Butler (2012), http://www.guardian.co.uk/politics/2012/mar/20/nhs-reform-bill-health-passes
See Dixon (2012), http://www.guardian.co.uk/healthcare-network/2012/apr/04/nhs-reforms-health-social-care-bill
As in the case in the Netherlands. See, ‘Going Dutch.’ (Cohn 2009)
For more on the moral limits of markets see Michael Sandel’s (2012), What Money Can’t Buy: The Moral Limits of Markets.
Bismarck was also concerned with the practical realities of creating a unified German state. Frontline: Sick Around the World: Health Care Systems—The Four Basic Models.
http://www.pbs.org/wgbh/pages/frontline/sickaroundtheworld/countries/models.html
For more on Europe and the Welfare State see, European Foundations of the Welfare State.
Kinney and Clark 2004, 287.
UNHCR UN Refugee Agency. Preamble to the Constitution of 27 October, 1946, Republic of France. http://www.unhcr.org/refworld/country,,NATLEGBOD,,FRA,,3ae6b56910,0.html
Rwanda’s universal Mutuelle de Sante healthcare program preceded the implementation of universal healthcare in the United States, which will not be duly implemented until roughly 2014. Although it is far more basic than the healthcare coverage the United States government will provide its citizens it is a highly unusual example of a developing country—indeed one of the world’s poorest in the bottom 50 of the United Nations Human Development Report—guaranteeing a basic level of healthcare to all citizens within the economic means of the government. No other developing country suffering from extreme poverty has achieved such remarkable healthcare provision to its citizens.
See, “Working Towards Universal Healthcare Coverage in Rwanda,” Brookings and McNeil (2010), “Dirt Poor Nation with a Health Plan” as well as the World Health Organization’s “Sharing the Burden of Sickness: Mutual Health Insurance in Rwanda,”Bulletin of the World Health Organization.
See also “In Rwanda, Health Care Coverage that Eludes the US,” Tina Rosenberg (2012), The New York Times.
These include Argentina, Brazil, Chile, Costa Rica, Cuba, Mexico, and more recently Peru and Colombia. Nevertheless, with the exception of socialist Cuba where private healthcare is not available, there are large gaps between the quality of healthcare provision provided by government supported public healthcare programs and private insurers and healthcare providers in these countries. Few Latin American countries achieve a standard of care that compares favorably with that of Western European countries so while universality may technically have been achieved its quality may be quite low and far from a just minimum and sufficient level of provision. Brazil, Chile, and Mexico however have all made continued progress on expanding quality and access to healthcare universally, even though the basket of medicines and treatments they provide is not as comprehensive as those offered by Western European and other wealthy nations.
The legal institutions of these countries fail to enforce their own laws as do the legal bodies of the UN which are extremely weak, politicized, and with few mechanisms for enforcement and genuine legal accountability.
Afghanistan, Angola, Bolivia, Burkina Faso, Congo, Ecuador, Egypt, Ethiopia, Guatemala, Haiti, Mozambique, Mongolia, Myanmar, Nicaragua, Nigeria, Paraguay, Peru, Philippines, Somalia, Sri Lanka, Suriname and Uganda are similarly impoverished countries with constitutions that guarantee healthcare but which are unimplemented. Indeed some of the most comprehensive and explicit guarantees of healthcare can be found in the constitutions of the countries least able to fulfill them. Countries such as Egypt, Congo, Ethiopia, Myanmar, and Sri Lanka choose to prioritize military expenditures for weapons procurement and development of their armed forces over healthcare provision to their nation’s citizens. Furthermore, it is important to acknowledge that in many developing countries public health efforts such as sanitation, provision of clean running water and nutritious diet, and disease prevention are of greater urgency and more likely to substantially improve overall health than medical care. In this regard then their health priorities should be substantially different than those of wealthy middle and upper-income countries where public health efforts already receive generally robust funding. See Buchanan (2009), page 204, for more on this issue.
Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/index.shtml.
UN International Covenant on Economic, Social, and Cultural Rights.
UN International Covenant on Economic, Social, and Cultural Rights.
UN Convention on the Rights of the Child.
UN Convention on the Rights of the Child.
UN Convention on the Rights of the Child.
UN Convention on the Rights of the Child.
See Bill Clinton’s major healthcare policy address to Congress.
See Barack Obama’s major healthcare policy address to Congress.
In Clinton’s major address to Congress on healthcare reform he placed great emphasis on economic arguments about efficiency and waste reduction and the importance of lowering healthcare costs so as to be able to compete effectively with the businesses of nations with far lower healthcare costs. “Rampant medical inflation is eating away at our wages, our savings, our investment capital, our ability to create new jobs in the private sector, and this public Treasury. Our competitiveness, our whole economy, the integrity of the way the Government works, and ultimately, our living standards depend upon our ability to achieve savings without harming the quality of health care.”
Ibid.
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Acknowledgments
The author wishes to thank Lilie Chouliaraki, Department of Media and Communication at the London School of Economics and Luc Bovens, Department of Philosophy at the London School of Economics for detailed comments and critique which proved invaluable when researching and writing on this topic. I am grateful for their generous feedback.
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Schimmel, N. The Place of Human Rights in American Efforts to Expand and Universalize Healthcare. Hum Rights Rev 14, 1–29 (2013). https://doi.org/10.1007/s12142-012-0247-x
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DOI: https://doi.org/10.1007/s12142-012-0247-x