The “Right” to Health Care in America


By MIKE MAGEE

I’ve been working on a Spring lecture for President’s College at the University of Hartford titled, “The Constitution and Your ‘Right to Health Care’ in America.” 

My description reads, “This lecture explores the recent political history and legal controversy surrounding attempts to establish universal health coverage in America. “Is health care a right?” viewed within the context of the Bill of Rights and especially the 9th and 10th Amendments?”

Self-described libertarian-conservative John R. Graham, a health policy analyst in the Trump administration’s HHS, writing on the topic in 2010 stated that, “As a non-lawyer, my understanding is very simple: The Ninth Amendment states that ‘the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ So, if you claim a ‘right to health care,’ there’s nothing in the Constitution that denies your claim. Indeed, libertarians and conservatives should be more willing to concede a ‘right to health care,’ because once it’s defined as a right, the entire weight of the Constitution comes down against federal (and perhaps even state) control.”

This bit of semantics crash-lands with common sense, as it did in my own state in 1965 when the Supreme Court in a 7 to 2 decision (Griswold v. Connecticut) dismantled an 1873 Comstock Law that prohibited married couples from buying and using contraceptives. Writing for the Court, Justice William O. Douglas declared that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Though marital privacy was not mentioned in the Bill of Rights, legal analysts have suggested that Douglas was asserting that logic dictated that marital privacy “is one of the values served and protected by the First Amendment through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well.”

Justice Goldberg concurred at the time, writing: “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.”

“Common sense” is what Atul Gawande was mining in his classic 2017 New Yorker article when he went back to his hometown of Athens, Ohio, in the Appalachian foothills, to speak with his now grown-up childhood classmates about “rights” and health care. 

Some of his comments drawn from their insights and prejudices shed light.

“ I had grown up steeped in a set of core Midwestern beliefs: that you can’t get something for nothing, and that you should be reluctant to impose on others and, likewise, to be imposed upon. Here self-reliance is a totemic value.”

“.. A right makes no distinction between the deserving and the undeserving..”

“Some people see rights as protections provided by government. But others … see rights as protections from government.”

“ The notion of health care as a right struck her as another way of undermining work and responsibility… But Monna, like almost everyone I spoke to, understood perfectly well what Medicare was and was glad to have it…‘We all pay in for that,’ she pointed out, ‘and we all benefit.’”

“… rights are as much about our duties as about our freedoms”

“Trade-offs now have to be considered. And saying that something is a basic right starts to seem the equivalent of saying only, ‘It is very, very important.’”

“‘I think the goal should be security,’ he said of health care. ‘Not just financial security but mental security—knowing that, no matter how bad things get, this shouldn’t be what you worry about.’” 

“The mistake is accepting the line, and its dismal conception of life as a zero-sum proposition. It gives up on the more encompassing possibilities of shared belonging, mutual loyalty, and collective gains.”

“During the next two centuries, we relied on government to establish a system of compulsory public education, infrastructure for everything from running water to the electric grid, and old-age pensions, along with tax systems to pay for it all…Health care has been the cavernous exception.”

“Maintaining the link between health coverage and jobs is growing increasingly difficult, expensive, and self-defeating.”

“Few want the system we have, but many fear losing what we’ve got.”

“What we agree on, broadly, is that the rules should apply to everyone.”

Mike Magee, MD is a Medical Historian and Health Economist and author of “Code Blue: Inside the Medical Industrial Complex.

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