Is Health Care a Human Right?

Posted on Categories Health Care, Human Rights, International Law & Diplomacy

global-healthcare3As Congress enters the final stretch in pushing forward a health care reform bill, I have been struck by the fact that during the ongoing debate very few people seem to pose the question of whether access to health care constitutes a human right.  Yet, in many countries around the world, this perspective forms the starting point of their national debates—and this consensus inevitably directs their public policy on universal health care. 

For example, while in Peru I received a grant from the Ford Foundation to conduct research on the right to mental health for survivors of the country’s internal armed conflict.  In the course of the study, I interviewed many government officials, advocates from non-governmental organizations and ordinary citizens.  None of these people questioned the basic premise of my study which was that health is a human right, as enshrined in international treaties such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Article 12 of the ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Covenant has been ratified by 160 countries in the world, but not the United States.  The 1946 Constitution of the World Health Organization (WHO) recognizes that the right to health is a fundamental right “without distinction of race, religion, political belief, economic or social condition.”  Significantly, the United Nations General Assembly (composed of representatives from 192 member countries adopted a resolution in 2003 reaffirming the right to health.

Professor Eleanor D. Kinney, Co-director of the Hall Center for Law and Health at Indiana University School of Law conducted a study in 2004 found 67.5% of countries to include the right to health  in their national constitution.  The United States is the only industrialized nation in the world not to guarantee access to health care, through universal health care, as a right of citizenship.   

Given this global recognition of the right to health, I often wonder why Americans seem so afraid of moving in this direction and catching up with our peers.  Why is health reform so controversial? 

Is it the cost?  Maybe, except we permit millions of tax dollars to be spent daily on bank bail-outs, wars in foreign countries, emergency aid for developing nations, and even stimulus money to build our national infrastructure like highways and bridges.   One estimate puts the health reform cost at $1.05 trillion over 10 years, which is almost as much as we will spend on the wars in Iraq and Afghanistan by 2010 ($1.3 trillion).  However, since health costs currently outpace the growth of the economy, this initial up-front investment would lead to long term savings.

Is it a misunderstanding of what universal means?  People often believe that the right to health means everyone will be able to demand perfect health — the “right to be healthy.”  But the ICESCR recognizes that the right to health is subject to “progressive implementation” and strives towards a minimum acceptable baseline that is attainable.

Is it a mistrust of government?  Some speculate that health care access and quality will decline if there is universal health care.  But more and more reports on comparative systems in places like Canada, France, the United Kingdom and Germany are debunking this claim.  National Public Radio covered the story of one American middle aged couple had to move to Mexico because his childhood polio problems prevented him from working, and she was denied coverage because she survived cancer twenty years ago—they literally could not afford to stay here (even though he was a retired military officer).  Once in Mexico, they were enrolled in the government health plan (which is tax dollar funded although the couple paid a few hundred dollars annually).  They reported that the care was “excellent.”

Is there an unwavering belief in the free market?  Perhaps, but it seems that leaving universal health care to the market is not working.  According to the U.S. Census Bureau, nearly 47 million Americans, or 20 percent of the population under the age of 65, were without health insurance in 2008.

Some opponents to a government response to this market failure accuse the administration of being socialist.  This reaction really confuses me given that we seem to accept that certain public goods are so essential to our national well-being that the government involvement makes sense: public schools, national highways, police and fire fighters, libraries, to name just a few.  Are we then already a socialist country?

But to get clarity on this last issue, I asked my Chilean colleague Professor Pablo Contreras, while he was here during the student exchange with Hurtado University  how it is that his country has been able to sustain political support for a universal health care system.

I began, “Chileans don’t worry that it is socialist?” 

Certainly, Latin America was the Cold War’s physical battlefield.  General Pinochet, himself, ruled Chile with an iron fist for seventeen years as part of his crusade against communist leftist groups.  People still suffer the loss of their loved ones who were disappeared, tortured and killed as a result of this internal war.  So I figured that if anybody might be spooked by expansive government programs despite their thriving capitalism, wouldn’t it be the Chileans?

I was wrong.

As he explained, “Despite the fact of the political differences, there is a consensus in order to secure some minimum living standards. There is, of course, disagreement in the way that the State applies this particular public policy but that hasn’t been an obstacle to develop an intelligent system to secure minimal health standards. In some way, it’s a correction of capitalism.”

The Chilean approach begins with the principle that health is a human right.  But it is also practical. To compete in a global market, they understand that universal education is not enough. Certainly, a well educated—but sick—person is not productive.

Could our resistance to universal health care be simply a matter of ideology?  America–the land of opportunity— assumes a self-reliant folk will pull themselves up by the bootstraps Horatio Alger style.   We don’t tolerate “free loaders” and “system abusers” (not my words, but rather terms I heard used recently by opponents of the proposed health care reform). 

But hold on.  Aren’t the millions of people without insurance just like you and me? Maybe you have once been without insurance, or know someone in that situation?  They are usually ordinary citizens who followed all the rules, tried to be contributing and upstanding members of society—but alas, their bootstraps snapped.   You can hear their stories on National Public Radio: self employed, just out of college, excluded because of a previous medical condition, recently unemployed, retired but too young for medicare….the list goes on.  They were denied insurance or could not afford insurance which de facto translates into their having no access to health care.      

Insurance, of course, is a business that makes decisions based on the bottom line and not from the perspective that health is a human right (“human”, i.e., living organism that needs health to survive or will die).  Yet, somehow our national debate is not about access to quality health-care facilities, goods, services and programmes (the United Nations standard) but rather mandated access to health insurance, with a possible government option that will compete with the private sector.   It seems the market has trumped our rights in directing our national debate.

So now I am wondering:  what will be the consequence for those families who defiantly choose to put their precious resources towards essentials like food and housing instead of paying their monthly insurance premiums?   Isn’t there a reason why they can’t afford insurance now?

The ideological starting point of our national health reform debate could lead to some rather strange outcomes.  As the world looks on puzzled, they may be wondering if Horatio will ever repair his bootstraps.

10 thoughts on “Is Health Care a Human Right?”

  1. It’ not a “right,” but it is a common good. For the same amount of dollars we are spending today (16.5% of GDP) we could provide first-class Cheney-care to 100% of our population. Including those in BadgerCare and Medicaid, and those who are uninsured and under-insured.
    It’d be a Medicare-for-all system that would eliminate the insurance bureaucracy waste (31% of our costs) and we’d spend it on patient care instead. We’d pay for the system through our national infrastructure (taxes) and eliminate this cost for businesses. They could spend the savings on keeping jobs in the US instead of outsourcing to countries already with universal healthcare. A bailout for 100% of our businesses, not just the banks and car manufacturers.
    But instead, we are spending more time and money trying to avoid doing it the right way, than it would cost to do it correctly up front.

  2. Many problems with your comments!
    We didn’t “permit” the use of bailouts — they were just done. We had no say in the matter. Yes we have mistrust in the government — why? Medicare, Medicaid, Social Security, the Post Office are all going broke.

    Why a minimum amount of care – isn’t it a “right”?

    And it is not 47 million. Even Obama finally admitted that. Out of the 47 million, nearly 1/3 are upper class and need no help with plenty of cash to buy any insurance they may want. Then, another 1/3 are eligible for Medicare, Medicaid, etc., but fail to sign up for some reason. Then there are millions who are immigrants and not eligible. Also millions of young 20’s and 30’s who are single and could care less about insurance. They don’t need any and don’t want any.

    This leaves maybe 8 million or so that have a problem….not 47 million. Very significant! Why trash the greatest health system in the none..when the new bill is not going to cut costs…and that was the whole intent of the bill. Cut Cost!
    And don’t blame insurance companies…their costs are tied to the medical profession costs. If hospital stays go up, doctor fees go up, MRI’s cost a couple thousand now…the insurance company must raise their fees to cover these increased costs…no choice!

  3. I should have added that if health care is necessary and a “right”…why isn’t water or housing, or utilities a “right”. We pay for them but they are a necessity!
    Just a thought!

  4. I’m trying to think of another right that must, by its very definition, be provided by someone else. There’s a right to bear arms, but that doesn’t mean government has to provide it for you if you can’t afford it yourself. (Can you imagine the uproar if gun welfare were suggested?). Rights to life, speech, belief, conscience, liberty, property, self-protection–none of those are provided by another person.

    The right to counsel would seem to be an example, although that has only relatively recently been read as mandating government-provided counsel if a person cannot afford one. Further, the purpose for that right is largely to give the person the most protection possible from the government taking away other of the person’s rights. Similarly, the other due process rights are safeguards against the deprivation of other rights. I don’t see how those are comparable to health care. That a person may die without health care is not an example of government depriving that person of a right to life.

    To say that people have a right to health care does not require government to provide it for them, it only requires that government not interfere with it or take it away without due process. I see government-provided health care as a privilege, then, not a right. Many people think it’s an extremely important service for government to provide, but it’s not a right.

  5. To add a little to my comment-

    My interpretation of the limited extent of a “right” to health care is shown by the understanding that a person incarcerated by the state has the right to have health care provided by the state. In other words, only when the government has acted to limit a person’s access to health care does the government have the obligation to provide that health care to the person.

  6. Nice start, Lisa. It’s a fascinating question.

    I don’t know that an examination of the systems in Canada, Great Britain, etc., “debunks” concerns about government provided health care. I tend to agree with John Major. The American system, he says, provides a much higher quality of care but the British system provides care on a more egalitarian basis.

    And that’s where I start to wonder what work is done by referring to health care (much less “health”) as a right. As Tom points out, calling health care a right implies a corresponding duty on the part of someone else to provide it. Because that duty cannot possibly be unlimited, we must now talk about how much to extract from providers and taxpayers in order to provide how much to recipients.

    This becomes a rather pragmatic discussion in which empirical claims matter a great deal. The language of rights – with its connotation of a claim that trumps most other considerations or that can somehow be expressed as an enforceable entitlement – does not get us very far – although as I’ll explain in a moment, it may help a little.

    Returning to that pragmatic and empirical discussion, my own sense is that the US system provides superior care to the vast majority of citizens and leads the world in innovation. It seems to me highly likely that the amount of money we spend and the market incentives for specialists, medical device manufacturers and pharmaceutical companies.

    Believing this, I am concerned that top down systems will stifle innovation and lead to rationing of care based not on what patients demand but on what political rent seekers are able to claim.

    This is not to say that there aren’t problems to address. One is access. It’s not as widespread a problem as some suggest, but it is nevertheless a problem. This is where, in my mind, we may be helped a bit by the concept of a “right” or, as I would prefer, the imperative of compassion. We will allow those who don’t have a car to walk, but we aren’t going to just let people die.

    Resolving the problem, however, seems to me to require consideration of what structural reforms will do to supply and the need for persons to take responsibility for their own care. This is a far more complex question than simple disdain for free loaders.

    The second problem area is efficiency. We don’t really have a market for health care and the anomolous connection of insurance to employment, combined with the unintended effects of regulation and the odd notion that health care should almost always be paid for by someone else, creates further market distortions.

    How to address those problems are difficult questions about which reasonable people will differ. We wrestle with them now when we talk about Medicaid, Medicare, anti-patient dumping laws, etc. But, as much as we lawyers like them, I don’t think “rights” helps us much with the answers.

  7. Activists are blinded by ideology, when cash works better. We are losing the health care issue not because we failed to mobilize, but because we fought with logic rather than bribery.

    We gave good arguments while the medical-industrial complex gave cash dollars. Over $125 million from insurance, hospital, pharma, and medical device manufacturers in 2008 alone. We were smart, they were smarter. We are now on the outside looking in, and no amount of head-scratching will alter the fact that we were simply outspent.

    In this situation we were better off with no bill rather than a bad bill, but we didn’t give the cash to make that happen.

    Politicians prefer bribes, so the insurance CEOs give cash instead.

    Logic is so “yesterday,” and the medical-complex bribes will now keep coming in as long as reform does not happen. Future cash motivates politicians better than historical cash, and that’s why they also prefer private over public services.

    There are three critical messages to take from this:

    1. Don’t stop here. We must mobilize to throw the b*stards out. Forced term limits is our next “public option.” Politicians must see an immediate response to their favoring money over matter; of selling the country to the highest bidder against the best interests of the nation. All politicians who vote for the current health care bill must be unelected in 2010!

    2. That doesn’t free the Republicans of blame, because they will vote against single-payer when it comes to the table. They are as corrupt; they just allowed the D’s to take this hit. But the R’s must also be replaced. We must rid our system of all miscreants.

    3. Recognize that this enemy — bribery — is deeply imbedded in our political culture. Over 80% of congressional decisions will favor money over people. It is behind the recent spiral of the nation’s economy. It will remain behind the massive transfer of wealth that eclipses our democracy and capitalism. Our country can no longer sustain political corruption or the massive wealth inequality that has resulted.

    If activists can be faulted for anything it is for their naivety. There is only one solution to this quagmire, and that’s to get the private campaign dollars out of the public electoral system. Though in its extreme (forced) it does not pass Constitutional muster, a reasonable solution is available: Optional public funding of campaigns.

    CALL TO ACTION: All activists and organizations must ask their congressional members to support the Fair Elections Now Act (S. 752 and H.R. 1826). Healthcare activists must immediately take on this second issue, because it affects all others. We can no longer afford to lose issues because of bribery. See:

    This bill provides for optional public funding of campaigns for any politician who prefers not to take private or special interest money. A politician who prefers private money can remain on the current system. It is funded by a surcharge on federal contracts. A candidate needs only to acquire a preset number of community signatures to qualify. In Arizona and Maine 70% of their legislators ran and won under public funding, and that included R’s and D’s and Libertarians alike. And it passes constitutional muster, so don’t accept otherwise from your congressman.

  8. With regard to the debate about what may properly be called a “right,” I am not convinced by the argument that something isn’t a “right” when it must be provided by someone else. To me, it seems like a way of disguising the real issue rather than taking it head-on, because, if you step back and think about it, many of the concepts that we think of as rights — due process, for instance, in both civil and criminal courts and other decision-making bodies; or property rights — _do_ require that something be provided by someone else; it’s just that we don’t think of those services (i.e., court systems, or police and court protection of property owners’ right to exclude others) as “something,” in the way we think of health care as a consumer good. But that’s not because of any inherent difference in the concepts of due process or property rights, and health care rights, at least I don’t understand how so. Instead, it’s just another way of saying that health care is not something that we have considered to be the job of government, in the past. I.e., isn’t saying that health care isn’t a “right” really just a restatement of the position that due process and property are interests that our society and our government must be organized to protect, while health care is not? The real argument is there, around that question, of why health care is not the sort of service that should be fundamental to our government.

    Indeed, as Lisa points out, most of the rest of the world seems to find the idea of health care rights not even very interesting or controversial. Of course one would want a fundamental principle of one’s government to be the universal provision of an essential service like health care. Why not? Isn’t health care like fire prevention? Like property protection? Again, explain to me, why not?

    Of course, deciding that it’s a right (or, I guess Rick prefers, a duty of compassion) does not give us much help in the debate about how, specifically, to organize our society so that our health care system provides adequate health care for the human beings who live here, while not squelching innovation in medical science and technology. Those are difficult and interesting questions.

  9. Thanks for your thoughtful article. For anyone interested in finding out more about the growing U.S. movement for the human right to health care (and other economic and social rights such as housing, education, and work with dignity), please check out the website of the National Economic and Social Rights Initiative (NESRI at Our Human Right to Health Program works with partners across the country and has published a number of articles and reports on human rights principles for U.S. health care reform.

  10. Sure it is a right. We have the right to buy insurance or healthcare services.

    That does not mean that it should be provided at taxpayer expense.

    Just because we have the right to bear arms does not mean that the Goverment has to pay for our guns.

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