The Right to Health as the Unheralded Narrative of Health Care Reform

Abstract

IN PASSING THE AFFORDABLE CARE ACT, THE UNITED States took a giant, if partial, step toward joining other nations wherein the right to health constitutes an inalienable moral and legal right. Although not widely appreciated, the right of every person to enjoy the highest attainable standard of physical and mental health (the right to health for short) is not merely an abstract moral imperative. Rather, it is an established international legal precept still to be fully embraced in the United States. Even though the right to health was overshadowed during the health care debate by other narratives, such as insurance reform, cost control, and care delivery, this right remains a central if unheralded narrative of the Affordable Care Act and its legacy. What is this right that engenders these bold claims? It is an assertion of the responsibility of governments to strive for “the highest attainable standard of physical and mental health.” It is an asseveration that governments will respect, protect, and fulfill the right to health by ensuring the availability, accessibility, acceptability, and quality of the care required. It is an averment that governments will honor the tenets of accurate information, nondiscrimination and equality, and participation. It is an avouchment that governments will address the “underlying determinants of health” such as sound housing, clean water, and adequate nutrition, especially as these determinants apply to the needs of poor and other marginalized populations. As such, the right to health constitutes a concept broader than that represented by the right to health care, covering elements that the Affordable Care Act, with its focus on health care, addresses only in limited, although important, ways. The right to health—or more precisely, to health care—as a moral dictum is associated with Senator Edward Kennedy’s impassioned expression of hope “that every American— north, south, east, west, young, old—will have decent, quality health care as a fundamental right and not a privilege.” Others have echoed these sentiments, not least President Obama who framed last year’s health care debate as a core ethical and moral obligation. Americans appear to agree, evidenced by the very existence of and broad support for the Medicare, Medicaid, and CHIP public safety net programs. Moreover, 72% of Americans strongly believe that health care should be considered a human right. The right to health is also a matter of international law, one drawing on the collective force of national constitutions, international and regional treaties, and other instruments. As such, the right to health is as established as the more familiar rights to freedom of expression and religion. Leading the way were British laws as early as 1802 triggered by the health threats of the Industrial Revolution, and the Mexican Constitution of 1843, which recognized the state’s role in public health. In 1925, Chile became the first nation to incorporate the right to health into its constitution. Now more than 100 countries boast a commitment to the right to health or health care in their constitutions. Beyond these national efforts, several critical global pacts incorporate the right to health. First among them was the constitution of the World Health Organization (WHO), which in 1946 identified the “enjoyment of the highest attainable standard of health” as “one of the fundamental rights of every human being.” Two years later, the United Nation (UN) General Assembly adopted the Universal Declaration of Human Rights (UDHR), article 25 of which guarantees the right to “a standard of living adequate for the health and well-being . . . including food, clothing, housing and medical care.” Many international lawyers view the UDHR as creating a binding customary international law, including as an interpretation of the human rights commitments in the UN Charter, under which states have committed to the “universal observance of, and respect for, human rights.” In 1966, the UDHR was expanded upon by the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which asserts that signatory states recognize “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” It was against this backdrop that the UN Commission for Human Rights created the mandate for a Special Rapporteur on the right of every person to enjoy the highest attainable standard of physical and mental health. The combined force of the