Thursday, December 8, 2011

State responsibility & health

On my recent visit to Amsterdam, a tour guide delivered a cliché dig:
"Here in the Netherlands, we have access to excellent health care," he told the multinational gaggle of tourists following him about the city. Then, looking at me, he added, "Sorry about that, United States."
The comment pointed to a longstanding difference in views of a government's responsibility for the health of its people. In much of the developed world -- Canada and European countries, for example -- the state long has guaranteed a baseline of adequate health care. That political decision reflects a principle articulated more than a half-century ago in the 1948 Universal Declaration of Human Rights, a document that is informed by views on human rights and human security that were mainstream in mid-20th C. America, as I've written here. Article 25(1) of the Universal Declaration 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.

Article 12(1) of the 1966 International Covenant on Economic, Social and Cultural Rights, moreover, provides that its

States Parties ... recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

The United States is not party to the Covenant, however, and claims of an affirmative state duty seldom have won much acceptance Stateside. (But see here.) A notable exception was the inclusion of a right to health care in the 2008 Democratic Party platform. That plank helped to produce "President Obama's signature legislative achievement," as The New York Times aptly called it; that is, the Patient Protection and Affordable Care Act of 2010. (credit for photo of Obama signing the health care statute)
The Act requires everyone in the United States to obtain health insurance by 2014; noncompliance carries a tax penalty. This minimum coverage mandate is the linchpin of a broad-based coverage program. It promises insurers a pool of healthy payers who can help to subsidize the less healthy -- even persons who join the pool with pre-existing medical conditions.
This is evident in cases to be argued before the U.S. Supreme Court, over the course of 5-1/2 hours, on a June 2012 day yet to be set. (credit for above right photo of Supreme Court building)
► The merits question in Case No. 11-398, Department of Health and Human Services v. Florida, is "[w]hether Congress had the power under Article I of the Constitution to enact the minimum coverage provision." (Questions about the Court's authority and the Act's severability also will be argued, as detailed here.)
► Meanwhile, in Case No. 11-400, Florida v. Department of Health and Human Services, more than 2 dozen constituent states asked the Court to decide whether "Congress exceed[s] its enumerated powers and violate[s] basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program"; that is, the Medicaid program that provides care for America's poor.
Answer to these questions invites consideration of numerous clauses of Article I § 8 of the Constitution, empowering Congress' to, inter alia: "pay the Debts and provide for the ... general Welfare of the United States"; "regulate Commerce ... among the several States"; and "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."
At least for the international-law-trained lawyer, it also invites consideration of documents articulating a right to health. Given the dearth of overt consultation of foreign law after some criticized the Court's reasoning in Roper v. Simmons (2005), however, it seems unlikely that the expected dozens of amicus briefs will dwell on that.
Yet the question of a right to health will rest just beneath the surface of much argument about the powers and duties of government -- not only the government of the United States, but also those of its constituent states.

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