Healthcare: Is Healthcare a Basic Human Right

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As an American you are given much promise and opportunity, but like everything, these come at the cost of strict guidelines and stipulations. Our nation was built on freedom and justice for all, but what does that really mean? Here we are centuries later, and still burdened by interpreting and arguing the constitution that our founding fathers believed would outline policy and law in America. Luckily, something America gives to all citizens free of charge, are fundamental rights. Fundamental rights can and will never be taken away from any American citizen, and that is why they are so important to the ideologies of our country. This paper will attempt to argue the lack of application to a right I believe is very much so implied throughout our constitution, but denied to citizens; that right is healthcare. When speaking of healthcare, it is such an incredibly broad term that I will analyze it in three different parts: Emergency, non-emergency, and preventative. These three aspects I believe cover healthcare in it’s entirety, and can each be separately argued through different reasoning through penumbras of the rights that are enumerated in the Bill of Rights. There is very little precedent on healthcare specifically but through this paper I will aim to utilize different fundamental rights and relevant laws and cases to show why our constitution is lacking certain aspects that are in the best interest of each and every citizen in America. 

“Every banana republic in the world has a bill of rights.” This remark from Justice Scalia at a Senate Judiciary Committee meeting illustrates there is more to a Constitution than its words. Listing rights in a constitutional document is not a guarantee. Officials in government and the citizens they represent must see the document as higher law. The principle of higher law or natural rights states that the constitution is the fundamental law that limits government power. Through this principle, the constitutions told the people the rules of the land that they must obey in order for everyones rights to be kept. It states that the main purpose of government is to keep peoples rights to life, liberty, and property.

 To bring this concept to a lower power, each state constitution included basic principles to protect the state’s people, and addressed their unalienable rights in order to make sure they were kept. These rights were founded on the principles of natural rights philosophies. The main idea of natural rights philosophies was that humans were not naturally social, and government was only in place to bring them together. It states that in a state of nature, that is, under no governmental control, people have certain rights that could not be taken away from them, and the purpose of a government is to protect these rights. These unalienable rights include life, liberty, and property. When Thomas Jefferson used natural rights as a reasoning to declare independence from England, John Locke “believed that the most basic human law of nature is the preservation of mankind. To serve that purpose, he reasoned, individuals have both a right and a duty to preserve their own lives”. Healthcare is defined in the dictionary as: efforts made to maintain or restore physical, mental, or emotional well being especially by trained and licensed professionals. Through a denotation stand point this is a clear parallel to what Locke and Jefferson discuss. The preservation of mankind can be achieved by healthcare. Healthcare in all three aspects, emergency, non emergency, and preventative all can achieve the preservation and individual preservation of lives in America.  The fifth and sixth amendments, and later the fourteenth amendment, were all based on natural rights. This is a clear indication on how healthcare is a fundamental right through interpretation of the constitution. 

Along with the indication that healthcare is natural right, it can also be assumed that health care is a basic need that goes hand in hand with things like food, shelter, and water. In two different court cases through the Supreme Court, Estelle v. Gamble and Brown v. Plata the court recognizes the right to health care to prisoners in the country. Prisoners are the outliers of our society, they are being given basic necessities and really nothing exceeding that. They are given shelter, minimum food servings, water, clothing, and healthcare. Many of these prisoners are harming themselves just to be admitted to hospitals or hospital wards in the prison for a “vacation” from their usual routine. We are more willing to recognize the right to healthcare to prisoners than we are to recognize the right to healthcare in abiding citizens of the United States. In the decision in Estelle v. Gamble, Justice Marshall states that under the 8th and 14th amendments the Texas prison was obligated to provide medical care for prisoners. This is possibly the closest the court has ever gotten to analyzing medical care through a constitutional lens. The government has a clear interest in providing medical care to prisoners since they cannot serve a sentence if they are not alive to do it. However, I do not believe this is a strong enough argument to declare that this is the only reason why average citizens have never been included in healthcare requirements. 

Average citizens technically under law and policy have the right to emergency health care. Part of the reason for discussing the three different aspects of healthcare, is due to the fact that emergency care really differs from non-emergency and preventative. In 1986 congress passed The Emergency Medical Treatment and Labor Act (EMTALA) which guarantees people the right to emergency care regardless of ability to pay, or insurance status. By passing this act, congress is making a statement to convey the message that those in emergency situations do in fact have the right to healthcare. I believe this act is a good starting argument to how emergency care specifically is technically a fundamental right and should be written into our constitution for clarification. If a hospital cannot discriminate against people in general, and with this act can not refuse care to those in emergency situations regardless, it therefore makes it an action that cannot be taken away from any given individual; thus providing an argument as to why it is arbitrarily a fundamental right. However, by passing this act, I believe congress is providing a loophole. If emergency health care falls under similar guidelines as other fundamental rights, why is it not being added clearly into our constitution as a fundamental right? 

When discussing non-emergency care I think it is useful to just include preventative care along with it since the two situations many times overlap. Something I feel as though our lawmakers are neglecting is reality in an average American lifestyle. When discussing healthcare as a fundamental right it is essential to discuss it as a lifestyle, not just a “I have a cough I need to go to the doctor.” So many health issues are easily prevented with the right care and education. Congress has so far provided very vague privileges in regards to healthcare with children, elderly, and disabled people. This makes sense to give these three groups privileges since they could be seen as the most vulnerable in our society especially when it comes to illness. However, it is not fair to assume that no other members in society need the same kind of care, even including the people in these three groups. Everyone needs yearly check ups, physicals, dental cleanings, etc. If our government really wanted to benefit it’s people then this type of healthcare would be written into the fundamental rights. There is a large scale of people who either don’t have insurance or have very unsuitable insurance and cannot obtain these things which is essential in increasing life quality and expectancy. Adults are at higher risks for things like heart disease and cancer. With the right preventative measures, we can catch these kinds of diseases early and have a much higher chance at helping the individual. Non-emergency and preventative care I believe is a very essential thing to our society. I think it is one of the biggest assets we have and everyone should have the privilege of using it without paying an arm and a leg, and without any discrimination.

Discrimination in health insurance is something that needs to be briefly touched upon as well when making an argument as to why healthcare is a fundamental right and needs to be written directly. There is so much unfairness and inequality that it is really hard to organize and structure the argument as clean and cut as possible. Health insurance discrimination and even just healthcare discrimination stems largely I believe, from housing patterns, stereotypes, and unfair biases. Hospitals which are nicer, are in nicer areas. Those who live in slum like neighborhoods or “ghettos” are disadvantaged because they are more than likely going to have inadequate facilities compared to richer neighborhoods or towns. Health insurance has much room for discrimination. However, by law health insurance is not allowed to discriminate against race, color, national origin, sex, age, or disability, but there are many many other factors which they’re allowed to discriminate on, such as demographic location. Demographic location then goes back to housing patterns. Those who are poor are more likely to live in these bad neighborhoods, statistically speaking minorities are generally those who are going to be poor, in turn, minorities pay higher rates for health insurance and care that they cannot even afford to begin with. We are putting people at a disadvantage, and we are limiting their ability to adequately preserve their well-being as well as their families. We cannot disadvantage those based on their financial status through these loopholes congress has created, Bernie Sanders spoke saying 'Health care must be recognized as a right, not a privilege. Every man, woman and child in our country should be able to access the health care they need regardless of their income…” . 

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When evaluating whether healthcare is a fundamental right, I thought it would be useful to utilize the argument of whether or not education is a fundamental right. Healthcare and education are similar because they are both tools which Americans need to fulfill this ideology of the American Dream. Nobody can prosper without good health, and good knowledge. Brown v. Board of Education is a particularly interesting case to relate to because of the opinion of the court. Now even still, through the constitution the court has never deemed education as a fundamental right, but rather an opportunity that cannot be taken away from anyone. In the governments defense, education is handled through a state level and is protected through the 14th amendment on a federal level when it comes to the issue of discrimination of any kind; which is why Brown v. Board of Education is so essential to the argument of healthcare. If healthcare is technically an opportunity that cannot be taken away from anyone, why is it not also protected under the equal protection clause of the fourteenth amendment? In all reality, nothing is stopping anyone from receiving healthcare. People choose against it because many times it is not affordable or they do not have insurance. Nothing is stopping someone from starting an insurance plan. Certainly there are tons of disadvantages and I do acknowledge that but in the interest of a clear argument, under these standards wouldn’t that make healthcare a right protected by the equal protection clause of the fourteenth amendment the same way it makes education? 

If an educational argument is not persuasive enough, there is also an argument in regards to the right to privacy, which is concretely carved into our constitution as a fundamental right. In cases such as Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood v. Casey the court does an excellent job identifying women’s rights to privacy in regards of reproductive healthcare. By placing something like reproductive care under the right to privacy, the court is providing a wonderful ally for me to provide reasoning why reproductive healthcare, and healthcare are really not much different. The Supreme Court has decided that reproductive health is a privacy matter and therefore protected, however it is in no way guaranteed. Women are still fighting for rights to their own bodies and decisions, women are still fighting for their right to things like birth control. Back in March of 2017 thousands of registered voters took a poll, and “52% of men say they do not benefit from birth control” (Hatch). I find this extremely humorous considering 100% of men do not take birth control. Yet, here we are, still placing policy and regulation on reproductive care, a protected matter. In what way does healthcare differ from reproductive care? To me, it really does not. Healthcare should be an issue of privacy and therefore protected. We claim that reproductive care is protected under some circumstances under the first amendment yet reproductive healthcare is not a fundamental right. You should not have to fight, as a women for the rights to your own body! Just like healthcare, you should not have to fight for the right to be in good health. You should not have to worry that you can’t afford care that you essentially need whether reproductive or regular, because we do not protect our citizens with this fundamental right. 

Healthcare is a fundamental right. I believe under different amendments it is proven, however it is not being interpreted and we are unconstitutionally depriving our citizens of a fundamental right; under the fifth amendment, “no person shall be deprived of life, liberty, or property, without due process.” Healthcare seriously makes a huge difference in the life of American citizens and therefore without it, we are depriving them of life without due process. In the year of 2006 Massachusetts required healthcare coverage from residents. After giving this policy some time to settle and effect data, it was found to significantly impact the state’s residents. The following are statistics from an article written in 2014: “the state saw a 2.9 percent decrease in the death rate through 2010,” “The change was more pronounced in lower-income counties, which saw a 3 percent drop in the death rate compared with just 1.8 percent for high-income counties. Deaths among people with conditions that would be expected to improve through access to healthcare, such as cancer, heart disease and infectious disease, also dropped by 4.5 percent,”. Not only does this article clearly point out the financial bias I mentioned previously within poorer communities, but it is proof that healthcare is a major influencer to life! If we can provide this to our citizens, for what reason would we not do so? Any benefits that the U.S. freely gives to people like the right to freedom, right to speech, etc, how can any of these be enjoyed if we are not healthy and alive? Healthcare, whether it be the emergency, non-emergency, preventative, or insurance aspect, it is all so extremely important to the preservation of life which is what this constitution was built on. As I’ve mentioned the fifth amendment specifically was derived from the argument of natural rights, better known as the right to preservation of mankind. If the amendment is built upon that concept than it is hard to deny the fact that healthcare falls under these guidelines. Healthcare has done nothing but improve health, and members of society for centuries. It is a leading cause of rising life expectancy rates. What is not a riser of life expectancy rates is the rejection of adequate and affordable healthcare to all citizens. Under the arguments provided, the fifth amendment can be applied to the concept that healthcare is in fact a fundamental right.

The ninth amendment is also a very useful amendment in the argument I am trying to make. The ninth amendment states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment is put in place to basically state that although there are things that are not mentioned does not mean that they can be violated. For example, healthcare is not listed. Yet, our government is violating our constitutional right to it. Just because the right to healthcare is not specifically mentioned and word for word stated, there are many reasons why it is implied, reasons which I have previously mentioned and will continue to provide. Our constitution is very arbitrary, if it wasn’t half the people who deal with it daily would probably be unemployed. Some things apply to some situations but not others, some things can be implied others, not so much, it is all very arbitrary. Yet, if healthcare can be interpreted through so far at least two different amendments, along with numerous different court rulings, I believe healthcare could also fall under the ninth amendment due to the fact that it is not actually in the constitution. This amendment clearly has a purpose, if it was important enough to be added. By saying that many rights exist outside of the ones explicitly mentioned, the amendment is providing an argument for things like healthcare that are essential to society but maybe were not thought of at the time. When the ninth amendment was ratified in 1791 people cared more about healthcare than they seem to now. In fact, “in 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves”. I believe that these laws and policies put into place back in the 1700s should really open our eyes to laws and policies that need to be in place today. Of course, the previous quote regards workers and employers but congress clearly had an interest in making sure seaman had medical insurance and hospital insurance. 

The previous quote leads to a very interesting point brought up in the famous case National Federation of Independent Business v. Sebelius which many people know better as the Obamacare case or the Affordable Care Act. Obama passed an act which required people to purchase health coverage, very similar to the congress act back in the 1700s. Though there were numerous aspects to this case, some which are essentially irrelevant to my argument, one is worth mentioning. The second question proposed to the Supreme Court was basically stating is it constitutional to require this of people to which the court answered yes. They stated that it is in their congressional authority to require this from people. This was a huge step in healthcare. Although, many people were angry with the decision of the court, a lot of people benefitted from the ability to receive affordable healthcare. The Affordable Care Act worked to expand Medicaid which is a primarily free health insurance plan for the people who cannot afford any type of healthcare because they are too poor. The act also provided aid to people who didn’t quite meet the criteria of “poor” but were far from well-off, and helped to extend affordable insurance to them as well. This was one of the biggest steps our nation took in providing for it’s people. Arguing healthcare as a fundamental right, does not translate to healthcare should be 100% costless. Healthcare needs to be affordable however, and I stick by that more than anything. People cannot feel burdened to make a decision between their health and their financial well being. Obama felt very strongly about healthcare in the U.S. in a questioning during the presidential debate he stated: 'I think it [health care] should be a right for every American. In a country as wealthy as ours, for us to have people who are going bankrupt because they can't pay their medical bills -- for my mother to die of cancer at the age of 53 and have to spend the last months of her life in the hospital room arguing with insurance companies because they're saying that this may be a pre-existing condition and they don't have to pay her treatment, there's something fundamentally wrong about that.” 

The last and final argument I will make to provide reason as to why healthcare is a fundamental right is used by looking to the United Nations. Granted I recognize that just because other countries have something does not mean the U.S. needs to have it too. However, in article 25 of the Universal Declaration of Human Rights created by the United Nations states “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”.  I believe this is a strong, influential argument as to why healthcare needs to be written as a fundamental right. The United Nations is something America is apart of and if this is their declaration of human rights, we need to abide by it as a member of the group. We are very far behind compared to other countries, we do not view mental health the same way we view physical health, we do not view non-emergency care parallel to emergency care, we are not providing for our people. As a country we spend about 6% of our budget on Medicare and health, but what do we have to show for it? Our life expectancy rates are dropping yearly, our leading causes of death remain the same, and it is an issue of healthcare! If people have the access to preventative and non-emergency care the same way they have to emergency care, maybe we could start looking up. If people did not worry about being able to afford an ER visit, or a yearly mammogram, then just maybe some of the same leading causes of death would not be relevant year after year. 

Through this paper I have discussed many reason as to why healthcare is a fundamental right. It fits many categorial features and is relevant in a few different amendments. Healthcare and education are two really good examples of how our government is lacking proper care for it’s people. If the government after years could view education as protected under the fourteenth amendment than healthcare should be no different because it does the same thing for individuals, and for societies. Healthcare falls under a natural rights argument something our constitution is based upon, and something our founding fathers believed strongly in. Amendments five, six and fourteen were all direct applications of the natural rights argument and therefore can all be utilized to a degree in the argument for healthcare. Healthcare is a basic need, no different than shelter or food, and prisons provide very good basis for that argument. If prisoners are entitled to healthcare, abiding citizens should be too. When Obama was in office, our countries government took huge steps in improving the healthcare of the nation, but actions like this need to continue in order to benefit our people for years to come. Through the United Nations, an organization in which America is a proud member, we are not meeting adequate standards to abide by article 25 in the Declaration of Human Rights.

 Healthcare therefore needs to be written as the fundamental right it is so we can better our nation. Healthcare is a direct preservation of mankind, something our founding fathers also made clear, we needed to protect. Without adequate, and affordable healthcare it is going to be nearly impossible to keep life expectancy rates from dropping, something that we should have a high interest in protecting. With the amount of scientific research, and ability, there is absolutely no reason as to why our life expectancy rates should be significantly lower than other countries. 

Healthcare right now is not protected, but it needs to be. We are denying the words of our constitution and we are denying the people of the United States a fair chance. I strongly believe, and hope I have shown the ways that healthcare is subtly in our constitution. It is being overlooked and therefore denying any person of healthcare whether it be through emergency, non-emergency, preventative, insurance, affordability, anything, it is all unconstitutional. Benjamin Rush once said: “Unless we put medical freedom into the Constitution the time will come when medicine will organize itself into an undercover dictatorship. To restrict the art of healing to doctors and deny equal privileges to others will constitute the Bastille of medical science. All such laws are un-American and despotic.”

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