American Journal of Law & Medicine

... And health care for all: immigrants in the shadow of the promise of universal health care.

INTRODUCTION

President Obama's ambitious universal health care plan aims to provide affordable and accessible health care for all. (1) The plan to cover the estimated 46.5 million uninsured, however, ignores the over thirty million non-citizens living in the United States. (2) If the United States passes universal health care coverage, Congress should repeal the prohibitions of the Welfare Reform Act, extend Medicaid coverage to non-citizens, and allow non-citizens to purchase employer-based insurance coverage.

President Obama's plan follows the lead of state universal health care legislation by retaining private, employer-sponsored insurance coverage and expanding the eligibility requirements of the Medicaid program. (3) This strategy will not aid uninsured immigrants or overburdened states and hospitals, though, because current law excludes most non-citizens from non-emergency health care services. (4) Federal law requires that hospitals screen and treat all patients in an emergency, but non-emergency care remains a patchwork of illogical policies. (5) Undocumented immigrants are excluded from non-emergency Medicare and Medicaid, while most documented immigrants are excluded from non-emergency Medicare and Medicaid for five years. (6) In fact, prison is often the only place undocumented immigrants may receive non-emergency health care services. (7) States and hospitals, therefore, shoulder the burden of caring for non-citizens without assistance from the federal government. (8)

A. OVERVIEW OF THE UNINSURED NON-CITIZEN POPULATION AND THE GOALS OF U.S. HEALTH CARE POLICY

An overwhelming majority of the 46.5 million uninsured persons in the United States are native or naturalized U.S. citizens, rather than immigrants. (9) Further, an estimated thirty million non-citizens live in the United States and, of these, only 11.6 million are undocumented immigrants. (10) So, the majority of the American uninsured are native citizens or legal immigrants.

In addition, non-citizens make up a large proportion of the workforce of the United States. (11) While immigrants represent twelve percent of the population, they make up fifteen percent of the workforce. (12) More than eight in ten immigrant families include a full-time worker, making them just as likely as native citizen families to have at least one full-time contributor to the workforce. (13) Nevertheless, immigrants are far less likely to have access to employer-sponsored insurance coverage. (14) According to the Kaiser Family Foundation, "a disproportionate number of immigrants work in low-wage jobs, in small firms, and in labor, service or trade occupations, which are less likely to offer health benefits." (15) Only thirty-three to forty-four percent of non-citizens have employer-based coverage. (16) Between forty-two and fifty-one percent of non-citizens lack any health coverage at all. (17) Therefore, contrary to popular belief, although the majority of the uninsured are native citizens, non-citizens make up more of the workforce and have less access to employer-based health insurance.

The United States Congress's goals of excluding immigrants from federally funded non-emergency health services are to deter illegal immigration and lower federal health care expenditures. (18) When excluding non-citizens from obtaining health care coverage under the Welfare Reform Act, Congress stated that "it is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits." (19) Studies show, however, that undocumented immigrants come to the United States for jobs more than any other reason. (20) In a sampling of four Latino populations of immigrants from Texas and California, three out of four populations cited work as the number one reason for immigration. (21) The fourth population cited family and friends, followed by work. (22) Less than one percent of undocumented immigrants cited "obtaining social services" as the primary reason for immigrating to the United States. (23)

Further, undocumented immigrants actually use less ambulatory care than the national average. (24) The same study found that undocumented immigrants had "fewer ambulatory physician visits [and] rates of hospital admission" than native citizens--except for hospitalizations related to childbirth, which were roughly the same. (25) One can, therefore, argue that the current ban on health care services for non-citizens may not deter immigration.

B. ARGUMENTS FOR EXTENDING HEALTH CARE COVERAGE TO NON-CITIZENS

Besides harming immigrants themselves, lack of non-citizen health care coverage burdens the hospitals and states that absorb the costs of treating undocumented immigrants. (26) Federal law shifts the burden of covering immigrants' health care to the states by prohibiting states from caring for non-citizens with federal funds, but allowing them to pass laws and independently fund health care for non-citizens. (27) Twenty-two states affirmatively provide health care to immigrants by supplementing federal health care funding with state funds--particularly for prenatal care and the SCHIP children's health insurance program. (28) Most of the states that have extended coverage are those with historically high rates of immigration. (29)

Many financially strained hospitals have resorted to repatriating undocumented patients to their home countries. (30) These hospitals transport immigrant patients who cannot pay their hospital bills back to their native countries without federal oversight or regulation. (31) Faced with a tension between humane treatment of patients and the financial bottom-line, hospitals effectively sentence non-citizen patients to death. (32)

Contrary to the argument that providing health care to immigrants constitutes a drain on the economy, an economic analysis supports an argument favoring extending coverage to undocumented immigrants. (33) First, the federal government benefits from the unclaimed federal payroll taxes of undocumented immigrant workers using false social security numbers. (34) From 2000 to 2005, undocumented immigrants furnished an estimated seven billion dollars in unclaimed Social Security tax revenue and another 1.5 billion dollars in unclaimed Medicaid taxes to the federal government. (35) Additionally, immigrants stimulate the American economy through the "investment and consumption of resources." (36) Finally, the federal government exacerbates health care costs by waiting to treat immigrants until care is at its most expensive point while denying less expensive routine medical care. (37) In most cases, providing immigrants with preventive care would be cheaper than waiting for more expensive life-saving care in the emergency room. (38) The federal government, however, aggravates this problem by requiring that hospitals treat undocumented immigrants in an emergency but providing no federal funding beyond emergency care. (39)

Preventing undocumented immigrants' access to health care also creates a serious public health problem. The discipline of public health aims to identify the source and stop the spread of disease, while championing straightforward solutions to health care problems such as preventive care and vaccination. (40) One author described a quintessential public health nightmare: "identify a large, rapidly growing population that is known to have high levels of communicable disease and high fertility rates, then deny them access to most health care other than emergency services, and devote as little funding as possible to the few services for which they are eligible." (41) This nightmarish scenario, unfortunately, represents the reality of the United States immigration and health care policy.

The human rights model provides a fundamental moral argument for the extension of health care services to undocumented immigrants. The human rights model asserts that certain values are "expressed and understood in terms of human rights--the rights that all people hold simply by virtue of their humanity...." (42) Under the human rights framework, if we regard health care as a basic human right and designate all humans as equals under the law, we cannot deny essential health care services on the basis of immigration status. (43) By accepting immigrants as human beings first, we accept that providing "basic preventive medicine and health care is not a right based on citizenship, but a right as a human being." (44) Several international treaties and constitutions, including the Universal Declaration of Human Rights, designate a universal right to health. (45) The United States, however, has not adopted the human rights framework in its approach to health care policy.

Adjudication has not provided a useful avenue to address health care coverage for undocumented immigrants. States have lost every suit against the federal government which claimed the failure of the federal government to properly manage national security and immigration policy resulted in a disproportionate state burden of caring for undocumented immigrants. (46) Courts have found that the federal government has the sole authority to regulate immigration, and that immigrants are not a suspect class qualifying for heightened scrutiny under the law. (47) The most effective legal solution may lie in legislative action.

Excluding non-citizens from health care services signals a blatant disrespect for human dignity and ignores the realities of immigration deterrence, public health prevention, and economic prudence. This note will argue that legislation guaranteeing affordable and accessible health care coverage for all should provide affirmative health care coverage for immigrants. …

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