A protester holds a sign with a quote that reads: "Pf all the forms of inequality injustice in health care is the most shocking and inhumane."

We Shouldn’t Be Focusing on Whether Healthcare Is a Right

The call for “Medicare for All” has grown louder and its cadence more frequent. Even President Obama has expressed support for it. Increasingly, as policymakers and stakeholders debate the path forward for healthcare in the U.S., a familiar invocation of human rights language can be heard.

The sentiment that “healthcare is a right” — rather, that it should be a right — has many layers. Its complexity is more accurately captured as “health(care) is a (human) right”. These parens make my head spin, too. They also suggest that Medicare for All is at best a piecemeal solution to the causes of poor health in the U.S.

We have no right to healthcare in the U.S., at least not in the same sense as our fundamental civil and political rights. The Emergency Medical Treatment and Active Labor Act ensures basic medical care if you arrive in an emergency room in a hospital that participates in Medicare and cannot afford to pay.

The U.S. Supreme Court, in Estelle v. Gamble, has recognized a right to adequate medical care for prisoners. We also have various federal and state programs, notably Medicaid, that provide access to care for low-income individuals.

This patchwork, however, is hardly indicative of a right.

We also have no right to health in the U.S. The (human) right to health exists in international law via the International Covenant for Economic, Social and Cultural Rights (ICESCR), which famously provides for “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The U.S. is one of only a handful of member states of the United Nations (UN) that has signed, but not ratified, the ICESCR. In practice, we are also far from reflecting the right to health in the U.S. As the UN’s Special Rapporteur on extreme poverty and human rights underscores, the status of human rights in the U.S. is more dire than we might expect.

Talking of healthcare as a (human) right in the context of U.S. policymaking, though laudable, is misplaced. Healthcare is only one thread in the intricate tapestry that is population health. When we talk of it as a human right—without also having a serious discussion about what a human rights-based approach is—what we are really talking about is the importance of striking the right balance between access and costs. To be sure, that is a discussion worth having. It should not, however, be our focal point. It distracts from the need to focus on the social determinants of health, which is the very thing that a human rights-based approach invites us to do in the first place.

Related: Watch a Webinar on Investigating an American Right to Health

The social determinants of health are often misconstrued, which impacts the entry points for interventions aimed at improving health. Often, we focus narrowly on intermediary determinants, such as housing, access to healthy food, a stressful work environment, or even the health system itself.

When we only focus on intermediary determinants—without also looking further upstream—we overlook the true causes of ill health. Upstream factors, such as poor governance, or inequitable social and economic policies, configure our exposure to intermediary determinants. When inequalities originate upstream, as they so often do, they ultimately flow downstream and produce health disparities.

If we are to take seriously the invocation of rights-based language, the path forward would look much different. For example, we could redirect political capital toward ratification of the ICESCR.

Ratification would require the creation of new federal laws to internalize the international right to health. This would provide the foundation for both robust protection and organic growth of the right over time.

We could also reframe current healthcare proposals to truly reflect a human rights-based approach to health. This would require a comprehensive inter-sectoral approach that focuses first on the upstream factors that generate inequalities. This would not require scrapping the ideas in existing proposals, but it would involve reframing the proposals on the whole.

Either path forward would be arduous. But history tells us that the opportunity for realizing comprehensive health(care) reform in the U.S. is exceedingly rare. We need to think carefully about where we put our stake in the (political) ground.


Image via Flickr/Elvert Barnes
Nicholas J. Diamond

Nicholas J. Diamond

Nicholas J. Diamond, JD, LLM, MBe is an advisor and legal academic. In his role at Avalere, an advisory firm in Washington, DC, he provides strategic counsel to biopharmaceutical companies on public policy issues. In prior roles, he led global market strategy for the healthcare and life sciences sectors at a Silicon Valley technology company, as well as advised the U.S. government on public policy issues during implementation of the Affordable Care Act. Nick concurrently holds part-time faculty appointments at Georgetown Law and George Washington, as well as (non-faculty) academic affiliations at the Perelman School of Medicine at the University of Pennsylvania. He is also a PhD candidate in public international law at the Grotius Centre for International Legal Studies at Leiden Law School, where he is writing on the intersection of human rights law and international investment law and arbitration. Nick’s work has appeared in law reviews, peer-reviewed journals, and popular media outlets. He has lectured in various academic and industry fora, as well as appeared on U.S. news programs as an expert in public health law.

One thought to “We Shouldn’t Be Focusing on Whether Healthcare Is a Right”

  1. This author is a consultant for the biopharmaceutical industry, which is why he wants to pretend the Patient Protection and Affordable Care Act does not exist. The PPACA was based on the premise that all Americans have a right to healthcare, and its many provisions serve to codify that premise into formal law. The pharmaceutical lobby is spending billions to unravel the PPACA and oppose other laws based on the same premise, and will spend many more billions fighting Medicare for All — of which Mr. Diamond’s fees are less than a rounding error. Both the argument about social health and the discussion of the ICECSR are red herrings intended to distract from the plain meaning of the phrase, “healthcare is a right”, and confuse the fact that the best way forward for enforcing our right to healthcare is a universal healthcare program like Medicare for All. Make no mistake: this is a lobbyist representing his clients, not an objective legal scholar exploring the law.

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