What a right to health could mean for the US


Amidst the ongoing constitutional battles over impeachment, let’s not lose sight of another constitutional debate that could affect the health of tens of millions of Americans. On Friday, state attorneys general and plaintiffs weighed in on whether the Supreme Court should expedite its latest review of the Affordable Care Act’s constitutionality. This week, the Supreme Court is expected to decide whether to fast-track the case. Whether or not all Americans can get health insurance and affordable health care lies in the balance.

The case hinges on a technical question about Congress’ authority, but this debate obscures a more fundamental question: should health itself be a constitutional right in the U.S. – and would it matter if it were? As the ACA faces yet another threat and presidential candidates think big about how to fill its gaps, it’s worth noting how common constitutional health rights are both around the world and at the state level— and the meaningful impact these provisions have had.

A study on the right to health in the constitutions of all 193 UN countries shows that the U.S. lags behind other countries in ensuring a constitutional right to health: 74 percent of national constitutions take some approach to the right to health. What’s more, these rights are universal in more recently adopted constitutions: 100 percent of those adopted since 2000, compared to just 29% adopted before 1970, address health rights. Globally, 57 percent of constitutions explicitly protect the right to medical care, while 36 percent address public health.

A commitment to health also appears in nearly one-third of U.S. state constitutions and is actually more common in so-called red states. In Wyoming, the constitution proclaims that “[a]s the health and morality of the people are essential to their well-being,… it shall be the duty of the legislature to protect and promote these vital interests.” In Alaska, the constitution establishes that “the legislature shall provide for the promotion and protection of public health.”

Evidence suggests that these protections make a difference, especially when they are strongly worded. According to a 2015 study, including a duty to provide health care in the state constitution is associated with a 7.8 percent reduction in the infant mortality rate. Likewise, state constitutional provisions that expressly provide for the health of low-income residents are associated with a 6.5 percent drop in infant mortality. Similarly, a 2013 study of 157 national constitutions found that the introduction of a justiciable constitutional right to health care reduced deaths of young children by 5 percent overall. In functioning democracies, the reduction of deaths was even more pronounced at 8.7 percent.

Constitutional health provisions have also had impact in courts around the world, with broad-based population benefits. In a landmark case from South Africa, activists leveraged the constitutional right to health to expand access to anti-retroviral drugs for pregnant women living with HIV; it’s estimated the decision saved hundreds of thousands of lives. In Argentina and Colombia, citizens invoked their rights to health to ensure their children had access to vital immunizations. And in Portugal, the constitution’s right to health provided the foundation for a national health system providing free, universal care.

The urgency of action on health is undeniable. Even with the ACA, 27.5 million Americans are uninsured, and a recent study found that lack of insurance is responsible for an estimated 45,000 deaths a year. Many other households–even those with health coverage–face financial devastation as a result of soaring medical costs, which continue to be the leading cause of bankruptcies. Preventable conditions including heart disease and stroke remain top causes of death, while air pollution and other environmental health hazards are affecting more Americans than ever — disproportionately harming low-income communities. It should come as no surprise, then, that voters name health care as the single most important issue as they’re sizing up presidential contenders.

In fact, scores of countries have now demonstrated the feasibility, effectiveness, and importance of a constitutional right to health. They have also shown that the right can take different forms to meet the needs of the country. And the number of U.S. state constitutions with these rights—states across the political spectrum with a right to health and improved health outcomes—demonstrates that realizing a right to health is politically feasible and valuable in the U.S.

The U.S. has one of the world’s oldest constitutions. As a country, we should be proud of our historical role in advancing constitutional democracy. At the same time, we should recognize that the original document was both flawed and incomplete. The right to health can most securely be guaranteed in the future by a constitutional amendment that would bring the U.S. Constitution in line with the overwhelming majority of countries in the 21st century. This week, the Supreme Court will need to use existing language if they decide to take steps to confirm that Congress’s efforts to guarantee Americans the health care protections they want are not overturned.

Guaranteeing the right to health for all Americans is not only feasible, but would advance one of our nation’s core ideals: that all people should have the opportunity to thrive, and that our country does better when they do.

Jody Heymann is founding director, Amy Raub is an economist, and Aleta Sprague is a senior legal analyst at the WORLD Policy Analysis Center at UCLA. They are co-authors of ‘Advancing Equality’, being released by University of California Press on Jan. 14.


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