American Bar Association: Health Care As a Human Right
Mary Gerisch
americanbar.org
There are rights to which we are entitled, simply by virtue of our humanity. Human rights exist independent of our culture, religion, race, nationality, or economic status. Only by the free exercise of those rights can we enjoy a life of dignity. Among all the rights to which we are entitled, health care may be the most intersectional and crucial. The very frailty of our human lives demands that we protect this right as a public good. Universal health care is crucial to the ability of the most marginalized segments of any population to live lives of dignity. Without our health we—literally—do not live, let alone live with dignity.
In the United States, we cannot enjoy the right to health care. Our country has a system designed to deny, not support, the right to health. The United States does not really have a health care system, only a health insurance system. Our government champions human rights around the world, insisting that other countries protect human rights, even imposing sanctions for a failure to do so. Our government is not as robust in protecting rights at home.
The right to health care has long been recognized internationally. Ironically, the origins of this right are here in the United States. Health care was listed in the Second Bill of Rights drafted by Franklin Delano Roosevelt (FDR). Sadly, FDR’s death kept this Second Bill of Rights from being implemented. Eleanor Roosevelt, however, took his work to the United Nations (UN), where it was expanded and clarified. She became the drafting chairperson for the UN’s Universal Declaration of Human Rights (UDHR). That committee codified our human rights, including, at Article 25, the essential right to health. The United States, together with all other nations of the UN, adopted these international standards.
Since the adoption of the UDHR, every other industrialized country in the world—and many non-industrialized countries—have implemented universal health care systems. Such systems ensure that all persons within their borders enjoy their right to health care. In 1966, years after passage of the UDHR, the UN proposed another treaty including health care: the Covenant on Economic, Social and Cultural and Rights (CESCR). The CESCR further clarified, at Article 12, “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” “Health” in this context is understood as not just the right to be healthy and have health care, but as a right to control one’s own body, including reproduction.
Article 12 goes on to require that “states must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition, and housing, and through a comprehensive system of health care, which is available to everyone without discrimination, and economically accessible to all.” This treaty was signed by all UN countries. It was ratified by all countries except three—Palau, Comoros, and the United States of America. All signatory nations to CESCR are subject to periodic review of progress on the human rights so protected. The UN High Commissioner of Human Rights also reviews progress on rights protected by the UDHR. In preparation for these reviews, the U.S. government submits a report, touting its successes in the area of human rights.
Shockingly, or maybe just realistically, the U.S. report to the UN in 2015 fails to even identify health as a human right. Instead, it refers to efforts on health “measures,” intentionally avoiding use of the word “right” relative to health. (UPR report of the U.S. government, section H, paragraphs 100 and 101.) A reading of that report generates near disbelief among health advocates; “health measures” are not even remotely akin to “health rights.” But it was the only appropriate term to use. The only progress the United States had to report was the Affordable Care Act (ACA), a health insurance law, not a health care law. The United States could not admit to the UN that it had made no progress on so basic and fundamental a right as health.
What the government did not want to say is that contrary to ensuring the right to health, it continues to violate the UDHR with a system that discriminates against minority groups and/or all in poverty. This results in a “non-system” of health care. The UDHR does not condition health upon ability to pay, citizenship, or any other condition. The United States does. By codifying a system allowing huge corporate profits on health care as a commodity, our government has actually impaired, not improved, our right to health care. So maybe, and refreshingly, the United States was just being honest with the UN about its failure to ensure and protect the human right to health care.
This failure to protect the right to health is puzzling. From FDR’s drafting of the Second Bill of Rights to Dwight Eisenhower’s success in passing Medicare, our country’s leaders have attempted to ensure our right to health. The crucial and intersectional nature of that right was recognized in the 1960s by Martin Luther King Jr. during the Poor People’s Campaign. He affirmed that: “Of all the forms of inequality, injustice in health care is the most shocking and inhumane.” Chicago press conference held on March 25, 1966, in connection with the annual meeting of Medical Committee for Human Rights.
It is equally puzzling that our government has lauded, and continues to laud, the passage of the Patient Protection and ACA as a way to guarantee the right to health care. It is true that there have been improvements in our country’s health statistics since the passage of the ACA. As a result of the ACA, many people, through Medicaid expansion, are now able to see a medical professional when needed. And prior to enactment of the ACA, the death rate for lack of health care was appalling: Three people in our country died every 30 minutes for lack of health care. Since the ACA, that death rate has gone down, but it is still present. No matter how it is spun, health insurance is simply not health care.
Nowhere is that contrast clearer than in personal stories of suffering. After codification of cost barriers by the ACA, people were shocked; they had been convinced this law was a reform that would actually increase access to health care. While collecting stories, I spoke to Susan in Vermont. She is 27 years old and says: “I simply don’t understand what happened. I was told that the ACA would let me get the health care I need. I pay my premium every month. Now that I’m really sick, I can’t go to work and have very little income. It turns out I can’t go see my doctor without paying because I haven’t yet spent $2,000 this year out of my own pocket—after paying all my premiums. So, even after paying premiums which are thousands of dollars, and paying the $2,000 deductible, I still have to bring money with me for a co-pay.”
The United States does not really have a health care system, only a health insurance system.
Demonstrators participating in the Poor People's March at Lafayette Park and on Connecticut Avenue, Washington, D.C. (June 18, 1968).
Religious liberty advocates rally outside the U.S. Supreme Court while waiting for the Court's decision in the Burwell v. Hobby Lobby case.
Another heartbreaking failure of the ACA is told by Paul from Vermont. He relates the story of his wife’s death—another victim of the insurance system we call health care:
On Jan. 23, 2014, my wife Jeanette died of cancer. She was first diagnosed with thyroid cancer back in 2008. We were fortunate to have comprehensive health insurance at the time, and Jeanette responded well to treatment. Her cancer went into remission, and everything was great.
Then 15 months ago, Jeanette came down with a chronic cough. She went to the doctor and was told that she may have allergies. Looking for a second opinion, she went back to the oncologist who had treated her thyroid cancer and got X-rayed and tested. The news was terrible: Jeanette had advanced Stage 4 cancer that had spread to almost all of her internal organs.
We battled with our insurance company, Blue Cross Blue Shield, to get the chemotherapy pills Jeanette needed. They denied payment for the pills five times, saying that they needed to find the cheapest vendor. Finally, on the day Jeanette died, the pills arrived. They were tossed onto our deck and left sitting in 20-below-zero temperatures.
Losing my wife of 34 years is one of the most painful things I’ve ever experienced, but it was made much worse by the battles Jeanette and I had over insurance and by the lingering questions over whether Jeanette might have survived or lived more comfortably if she’d gotten the right test and treatments. After Jeanette died, I asked her doctor why they’d done no testing during her remission to detect any growth of cancer beyond her thyroid. I was informed that testing was “cost prohibitive” and may not provide conclusive results.
Paul’s and Susan’s stories are but two of literally thousands in which people die because our market-based system denies access to needed health care. And the worst part of these stories is that they were enrolled in insurance but could not get needed health care. Our lives depend on the ability to access a nonexistent health care system.
Far worse are the stories from those who cannot afford insurance premiums at all. There is a particularly large group of the poorest persons who find themselves in this situation. Perhaps in passing the ACA, the government envisioned those persons being covered by Medicaid, a federally funded state program. States, however, are left independent to accept or deny Medicaid funding based on their own formulae. Many states have not expanded their Medicaid eligibility. People caught in that gap are those who are the poorest. They are not eligible for federal subsidies because they are too poor, and it was assumed they would be getting Medicaid. These people without insurance number at least 4.8 million adults who have no access to health care. Premiums of $240 per month with additional out-of-pocket costs of more than $6,000 per year are common. Inability to pay these amounts systemically vitiates the right to health. Imposition of premiums, deductibles, and co-pays is also discriminatory. Some people are asked to pay more than others simply because they are sick. Fees actually inhibit the responsible use of health care by putting up barriers to access care. Right to health denied.
Cost is not the only way in which our system renders the right to health null and void. Health access is also tied to employers’ control of employees’ health care under the ACA. Employees remain in jobs where they are underpaid or suffer abusive working conditions so that they can retain health insurance; insurance that may or may not get them health care, but which is better than nothing.
Additionally, those employees get health care only to the extent that their needs agree with their employers’ definition of health care. This is nowhere more evident than in the recent Supreme Court case Burwell v. Hobby Lobby, 573 U.S. ___ (2014), which allows employers to refuse employees’ coverage for reproductive health if inconsistent with the employer’s religious beliefs on reproductive rights. Clearly, a human right cannot be conditioned upon the religious beliefs of another person. To allow the exercise of one human right—in this case the company/owner’s religious beliefs—to deprive another’s human right—in this case the employee’s reproductive health care—completely defeats the crucial principles of interdependence and universality. Because our “system” is based on insurance rather than health, our Supreme Court was able to successfully void the right to health in its Burwelldecision.
Despite the ACA and the Burwell decision, our right to health does exist. We must not be confused between health insurance and health care. Equating the two may be rooted in American exceptionalism; our country has long deluded us into believing insurance, not health, is our right. Our government perpetuates this myth by measuring the success of health care reform by counting how many people are insured.
Any system that promotes only insurance cannot possibly meet human rights standards. For example, there can be no universal access if we have only insurance. We do not need access to the insurance office, but rather to the medical office. There can be no equity in a system that by its very nature profits on human suffering and denial of a fundamental right. After all, insurance companies only make money if they do not pay claims. In short, as long as we view health insurance and health care as synonymous, we will never be able to claim our human right to health. The worst part of this “non-health system” is that our lives depend on the ability to access health care, not health insurance. A system that allows large corporations to profit from deprivation of this right is not a health care system.
We must name and claim our right to health. Only then can we tip the balance of power to demand our government institute a true and universal health care system. In a country with some of the best medical research, technology, and practitioners, people should not have to die for lack of health care. The real confusion lies in the treatment of health as a commodity. Health insurance is no more health care than fire insurance prevents fires in our homes. It is a financial arrangement that has nothing to do with the actual physical or mental health of our nation. Worse yet, it makes our right to health care contingent upon our financial abilities. Human rights are not commodities. The transition from a right to a commodity lies at the heart of a system that perverts a right into an opportunity for corporate profit at the expense of those who suffer the most. Health insurance companies make money by denying claims for care while still collecting premiums. That’s their business model. They lose money every time we actually use our insurance policy to get care. They have shareholders who expect to see big profits. To preserve those profits, insurance is available for those who can afford it, vitiating the actual right to health.
The real meaning of this right to health care requires that all of us, acting together as a community and society, take responsibility to ensure that each person can exercise this right. As individuals, we have a responsibility to contribute to making health care available to each of us. We have a right to the actual health care envisioned by FDR, Martin Luther King Jr., and the United Nations. We recall that Health and Human Services Secretary Kathleen Sibelius (speech on Martin Luther King Jr. Day 2013) assured us: “We at the Department of Health and Human Services honor Martin Luther King Jr.’s call for justice, and recall how 47 years ago he framed health care as a basic human right. We are committed to reducing health disparities, and that means making sure all Americans have access to affordable, quality health care. There is nothing more fundamental to pursuing the American dream than good health.”
All of this history has nothing to do with insurance, but only with a basic human right to health care. We know that an insurance system will not work. We must stop confusing insurance and health care and demand universal health care. If we can actually name that right to health, perhaps we can also claim that right to health. We must bring our government’s robust defense of human rights home to protect and serve the people it represents. Band-aids won’t fix this mess, but a true health care system can and will. As humans, we must name and claim this right for ourselves and our future generations.
Mary Gerisch is a retired attorney and health care advocate. She is a board member of the National Center for Law and Economic Justice, a leader of the health care Justice Team at Rights and Democracy Vermont, a member of the United States Human Rights Network’s (USHRN) International Mechanisms Coordinating Committee, and co-chair of USHRN’s Universal Periodic Review Taskforce. |
