American Journal of Law & Medicine

Rights to Healthcare in the United States: Inherently Unstable


Although international covenants have long recognized a fundamental right to healthcare, (1) and other countries provide healthcare coverage for all of their citizens, rights to healthcare in the United States have been adopted only grudgingly, and in a manner that is inherently unstable. (2) While a solid right to healthcare would provide much benefit to individuals and society, the political and judicial branches of the U.S. government have granted rights that are incomplete and vulnerable to erosion over time. (3)

Unfortunately, enactment of the Patient Protection and Affordable Care Act (ACA) does not change these fundamental weaknesses in the regime of U.S. healthcare rights. Millions of Americans will remain uninsured after ACA takes full effect, and rather than creating a more stable right to healthcare, ACA gives unstable rights to more people. As a result, even if ACA survives its constitutional challenges, access to healthcare still will be threatened by the potential for attrition of the rights that ACA provides.


Historically, rights to healthcare in the United States have been weak because courts have rejected the possibility of "positive" rights under the Constitution. (4) Rather, constitutional rights are largely limited to "negative" rights. (5) In other words, while the Constitution may preclude government from interfering with the autonomous choices of people, it does not require government to facilitate the exercise of individual autonomy. (6) Thus, for example, legislatures may not prohibit women from obtaining an abortion before their fetuses are viable, but they need not provide funding for women who cannot afford the cost of an abortion. (7) Similarly, legislatures may not prevent patients from receiving treatment for their illnesses or injuries, but nothing in the Constitution imposes a duty on government to ensure that patients can in fact obtain needed care. (8)

To be sure, a duty to provide healthcare attaches when the government confines people in prisons, psychiatric facilities, or other institutions, since the individuals are not free to seek healthcare on their own. (9) But for most people, the Constitution is not helpful. (10) Accordingly, when people are unable to afford medical treatment, they have had to rely on common law or statutory rights to healthcare. (11)



Statutory rights are the primary source of rights to healthcare in the United States, but they have been adopted only grudgingly. (12) Consider, for example, the history of Medicare and Medicaid.

1. The Passage of Medicare and Medicaid Medicare and Medicaid grew out of a five-decade history of efforts to enact national health insurance in the United States. (13) The effort began around 1912 during the Progressive Era. (14) Germany and other European countries had adopted government healthcare plans by then, (15) and Teddy Roosevelt championed healthcare reform in his losing presidential campaign of 1912. When Roosevelt lost to Woodrow Wilson, the cause was taken up by the American Association for Labor Legislation, which supported healthcare coverage for industrial workers. (16) Interestingly, the national healthcare movement was supported by the American Medical Association (AMA) at that time. (17) Indeed, a committee of the AMA reasoned that physicians' "blind opposition, indignant repudiation, bitter denunciation of these laws is less than useless; it leads nowhere and it leaves the profession in a position of helplessness as the rising tide of social development sweeps over it." (18)

By 1920, the effort to enact government-sponsored coverage had stalled, in part because more conservative elements at the AMA led to a reversal of the association's support for government-sponsored healthcare coverage. (19) Opposition also came from the insurance industry, the pharmaceutical industry, employers, and labor unions. (20) (The labor leader Samuel Gompers apparently feared that benefits gained through legislation rather than negotiation would be vulnerable to later repeal or limitation. (21) He probably also felt that benefits won by negotiation would make workers more likely to support unions. (22))

Timing often matters to the success of legislative reform, and opponents of a right to healthcare could exploit U.S. involvement in World War I against Germany and the Russian Revolution of 1917. Critics of national health insurance were able to discredit the policy by connecting it with Germany, which was the first country to enact a national healthcare plan. (23) The link to Russia and its right to healthcare allowed opponents to argue that national health insurance was a first step toward socialism. (24)

The next push for national health insurance came during the Franklin Delano Roosevelt administration, and the Social Security bill that was ultimately passed in 1935 originally included a provision for healthcare coverage. (25) The combination of physician opposition and the desire not to compromise the passage of Social Security, however, led FDR to drop his support for national health insurance. (26)

The Truman administration initiated the third effort for national health coverage, but the United States was embroiled in the Cold War, and

the AMA again waved the flag of socialism to mobilize public opposition. (27) In addition to the AMA's important influence, Truman faced a recalcitrant Congress that at the time was dominated by a conservative coalition of Republicans and southern Democrats. (28)

After four decades of failure to enact a universal healthcare program, advocates decided to refine their approach in the 1950s, and the strategy that ultimately led to the passage of Medicare and Medicaid was formulated. (29) Wilbur Cohen and I.S. Falk recognized that a health insurance plan focused on Social Security beneficiaries would be much easier to sell than a plan for all Americans. (30) By limiting its benefits to the elderly, Medicare could be portrayed as a program for people who met two important criteria: (31) they had greater need for healthcare coverage and they were especially deserving of public assistance. (32) Because of their age, seniors have relatively high medical costs--when Medicare was passed, average healthcare expenses for people sixty-five or older were twice the average expenses for younger persons. (33) At the same time, the elderly were less able to afford healthcare bills. (34) Medicare would kick in when people no longer were working and were experiencing a greatly reduced income. (35) Moreover, their reduced income did not reflect a lack of initiative or an attempt to exploit the system. Rather, they had made their contributions to society and moved into a well-deserved retirement. (36) Cohen and Falk further restricted their proposal by limiting it to hospital costs (and only sixty days of hospitalization a year). (37)

The Medicare proposal was refined further by making it a form of social insurance rather than public welfare. People qualified themselves and their spouses for Medicare in the same way that they qualified themselves and their spouses for Social Security--by making payments to the Social Security system during their working lives. (38) In other words, while a public assistance program for younger persons might stifle initiative and promote dependence, the Medicare program became available for persons who were not expected to be active workers and who in fact had earned their eligibility. (39) Medicare recipients would truly be "deserving" of their benefits. (40)

Still, even with a much narrower and politically more appealing range of coverage, it was not possible to pass Medicare until President Lyndon Johnson's landslide victory at the polls in November 1964. (41) With his election and the election of a strong majority of Democrats in Congress, conservative Republicans and southern Democrats were no longer able to block the legislation. (42)

By that time, a few proposals were being floated. There was the Cohen-Falk idea of hospital coverage for the elderly, with mandatory participation for workers (just as participation in the Social Security system is required). (43) Republicans offered a counterproposal for a voluntary program that would subsidize the purchase of comprehensive private insurance by the elderly. (44) The Republicans, then, drew three important contrasts with the Cohen-Falk proposal. (45) Their program would be optional rather than required, involve coverage by private companies rather than by government, and cover all medical services rather than just hospitalization. (46) The third main proposal came from the AMA and involved a federal-state program to subsidize the purchase of private health insurance for the elderly poor. (47) Like the Republicans, the AMA wanted a plan that was more reliant on the private sector. (48) The AMA also argued for a means-tested program, on the theory that the government should not be subsidizing healthcare coverage for elderly persons who could afford to purchase their own insurance. (49)

As healthcare reform worked its way through the legislative process, U.S. Representative Wilbur Mills, Chair of the Ways and Means Committee, came up with legislation that essentially combined the three proposals: (50)

   The Cohen-Falk bill became Part A of Medicare, a mandatory program
   to cover hospital costs and that would be funded by employer and
   employee payroll taxes. (51)

   The Republican proposal became Part B of Medicare, a voluntary
   program for physicians' services (funded by general revenues and
   individual premiums). (52)

   The AMA proposal was modified from a proposal to cover the elderly
   poor to a program that would cover children and some adults under
   the age of sixty-five who were unable to afford private health care
   coverage. (53) Thus was born Medicaid.


After more than fifty years, the United States finally came in 1965 to accept a right to healthcare, but even then it was a highly limited right. All seniors would be eligible for coverage under Medicare, and many of the poor would be eligible for coverage under Medicaid. (54) But rather than recognizing a right to healthcare for all persons, Congress opted to enact a right for those who "deserved" such a right. (55)

As indicated, Medicare beneficiaries were seen as deserving of their new program because they had earned it through a lifetime of work and financial contributions. (56) The adoption of the Medicaid program illustrated another way in which Americans could be seen as deserving of healthcare coverage. Some people, it was thought, lacked health insurance through no fault of their own. (57) One could not blame children, for example, for their failure to afford coverage. Medicaid was enacted as a program for poor persons who did not seem responsible for their lack of insurance. (58) Children, single parents with children, and persons with disabilities would qualify if their family incomes fell below an eligibility threshold. (59) All of these persons were seen as not responsible for their predicament, either because of age or infirmity or because of their childcare obligations. (60)

Thus, while the public commonly thinks of the Medicaid program as providing universal coverage for the poor, it never was designed to insure all of the indigent. The Medicaid program requires coverage only for poor people who fall into one of the mandatory coverage categories ("categorical eligibility"). (61) The mandatory groups include pregnant women, children, parents with dependent children, and persons with serious disabilities. …

Log in to your account to read this article – and millions more.