//  12/11/18  //  In-Depth Analysis

Take Care is pleased to present a series of posts offering thoughts on how Congress might address key issues in the healthcare system.

By Carmel Shachar, Alex Pearlman & Glenn Cohen | Petrie-Flom Center for Health Law Policy

The United States famously does not have an explicit federal constitutional right to health.  By contract, the “enjoyment of the highest attainable standard of health” was defined in the World Health Organization Constitution of 1946 as “one of the fundamental rights of every human being.”  The Medicare for All movement, which is building significant momentum in the more progressive wing of the Democratic Party, however, indicates that the United States may be revisiting the debate around health as a human right.  While significant movement on Medicare for All and health as a human right may ultimately lie several more years down the road, the newly Democratic House would do well to use this momentum to inform their health care legislation over the next two years.

The revitalization of health as a human right lies in part in the frustrations that the more progressive wing of the Democratic party has had with the Affordable Care act.  While the ACA was the most significant health care legislation enacted since the creation of Medicaid and Medicare, it focused almost exclusively on health care financing and insurance structures.  This reflected its genesis as a health care proposal from the conservative think tank, the Heritage Foundation, designed to preserve the free markets.  The ACA does not embrace health care as a human right, nor is it concerned with moral considerations such as equity.  As a result, while the ACA expands coverage for millions of Americans, it does not achieve universal coverage and fails to truly transform our health care system.

Increasingly, progressives are rejecting such an incremental approach in favor of universal coverage as justified by invoking health care to be a human right.  In Vermont the grassroots group, Healthcare is a Human Right, argued that “[o]nly by refocusing our healthcare system on human rights” will all Americans be “guaranteed access to comprehensive, quality healthcare.”  Motivated by ethical principles such as equity and human dignity, this group helped achieve Act 48 in Vermont, which commits the state to moving toward a universal, publicly financed healthcare system.  The Vermont experiences highlights the connection between universal coverage proposals and an ethical and human rights based approach to health care, not one based on market or public policy.

The move to a universal coverage health care system informed by a human rights and ethical framework in Vermont is only a harbinger of a movement increasingly getting traction across the country.  Liberal think tanks are increasingly abandoning the ACA market-based framework for universal coverage plans and at the same time invoking human rights and ethical language to support these new proposals.  For example, when the Center for American Progress recently released its universal coverage proposal, Medicare Extra for All, its president, Neera Tanden, justified the proposal by arguing “[h]ealthcare is a right, not a privilege.”  And it is not just the most liberal among Americans who support these proposals, as 70 percent of Americans overall are in favor of Medicare for All, including 52 percent of Republicans. 

National politicians are also increasingly supporting a universal coverage, human rights framework.  In 2017, 17 Senators and 124 Representatives sponsored or co-sponsored Medicare for All legislation and last year a Congressional Medicare for All caucus was established.  Senators supporting Medicare for All legislation include 2020 presidential hopefuls Bernie Sanders, Elizabeth Warren, Kamala Harris, Kristen Gillibrand, and Cory Booker.  Even Barack Obama has moved away from the ACA’s market driven approach to embrace Medicare for All.  While some thought leaders are trying to sell Medicare for All proposals on the basis of economic efficiency and savings, the strongest rhetoric used time and time again focuses on human rights and ethics. For example, Elizabeth Warren in a statement regarding her support of a Medicare for All bill in 2017, argued “health care is a basic human right” and only then moved on to the potential for universal coverage to address health care costs.  Health care as justified by rights and ethical consideration appears in the tweets and on the t-shirts of politicians.  Universal coverage is intertwined with rights and ethics, not economics.

But what does this mean for the 116th Congress?  Healthcare was one of the Democrats’ top campaign issues in the midterms, putting the pressure on them to pursue legislative action in this area.  Democrats will have to choose between trying to shore up the ACA, which does need some tweaks and modifications, and a more radical agenda of pursuing universal coverage.  Medicare for All proposals are not yet fully ready for primetime in that no one has solved how to transition a fifth of the United States economy from a market-based framework to a system undergird by human rights and universal access.  Significant energy will have to be devoted to refining a proposal that would minimize the pains of this transition, and also thinking carefully about the cost side.

Likely Speaker of the House Nancy Pelosi promised this summer that Medicare for All proposals would be evaluated in a Democrat-controlled House.  She would do well to fulfill this promise and to seriously pursue the development of a fully realized, workable proposal.  Given challenges to her speakerhood from new representatives who perceive themselves as outflanking her on the left, she has every political reason to do so. No one expects Medicare for All to become a political reality in the coming two years—for that we will have to wait, at minimum, for a Democrat-controlled Senate and a Democrat in the White House.  But to focus on health care legislation that still clings to the ACA’s market framework would be to ignore the direction that health care rhetoric is taking in the United States.  Pelosi and House Democrats can take advantage of the next two years by working to harmonize the various universal coverage plans floating around Washington D.C.  Issues such as benefits coverage and cost sharing, for example, must be addressed.  While developing a workable plan that has the potential for broad popular support, the House should remember that the motivation for this plan is one based in human rights rather than market economics.  We have clearly entered a new phase in American health care policy, one motivated by ethical considerations and human rights, and health care legislation moving forward should reflect moving forward.


The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

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