Is Health Care a Constitutional Right? Full Text


Photo Courtesy Blue Ridge Community College, North Carolina

A Constitutional Right to Health Care?

The assertion that we have a right to medical care is one of the pillars that supports the Affordable Care Act. Not the sole pillar, but one of them.

As with all of our rights, it has have a source, to be built up from the foundation for the national edifice. Being a democratic republic, as I understand it, we in the United States have two sources. One is the Constitution, and the other is the statutory authority given the various levels of government both federal and state by the Constitution.

Do we have the Constitutional right to medical care?

I would contend we do not. And the reason is simple and straightforward. The Framers of the document, in their historical context, had no concept of universal health care. They lived on the far side of the threshold of modern medicine. So to expect them to somehow divine what health care would look like two-hundred-plus years later is completely without justification. Therefore, there is no article or amendment in the Constitution that grants universal health care to us.

That being said, the Framers recognized there would be the need to occasionally amend the Constitution. That route has been taken by the nation some twenty-seven times (with one, the 18th, having been repealed). Ratification, however, is a protracted process, which is probably for the better, since amending the Constitution has for the most part been reserved for broad principles and the complexity of the ACA requires far too much statutory support for that to be practical.

That leaves one standardized process to grant (or in some cases restrict) rights: through the enactment of laws. It is the constitutionally-defined role of Congress to provide this governance. At the same time, the President of the United States has a different constitutionally-defined role to provide leadership and governance that ideally unifies these various processes and also provides a check and balance for the actions taken by the Congress. This is all the stuff of middle-school civics classes (if they haven’t been eliminated by budget cuts, but I digress).

The statutory process for legislating rights has both advantages and limitations. The advantages include the ability to pass laws in a much more expeditious manner (than a Constitutional amendment) and also to structure and focus them so as to facilitate writing the often complex rules required by legislation. The limitation of the statutory process, on the other hand, does not carry the weight of a Constitutional amendment, is more prone to be the result of political winds blowing at the moment, and can be challenged or repealed, as opposed to the significantly more difficult process that it takes to change an amendment. I believe the case can be made that 90% of the gale force winds of the current controversy over the ACA can be placed on the shoulders of the congress for not providing that governance, but that is a topic for another time.

The Right to Health Care is now a Matter of Law.

My perspective is that our right to receive medical treatment is based on the statutory side of the equation. And that is the problem. We lack a true Constitutional right for medical care. We are not going to get that, either.  Instead, the President set out to provide that right to the American people, but ended up creating a buffet-menu-type-act cobbled together as a basket-full of provisions. It is not perfect. Even those of us who are advocates for universal health care knew that in advance and recognize it even now. The ACA’s redeeming factor, however, is that it can be modified and improved over time. And I maintain it is light-years better than the mishmash of laws, regulations and deregulations that characterized the pre-ACA situation masquerading as American health care.

And that is good, no question about it. But Congress, because of the current political polarization and vitriol between the political parties, and with the House of Representatives being under the control of the Republicans (at the moment), didn’t like the president’s list (that dislike being fueled by intense lobbyist pressures from the industries that would be most affected and from members of the “far right”). Subsequently, they have committed themselves to, as they say, “repeal and replace.”

In light of the pending Supreme Court decision, should they prevail, it is an open question whether the G.O.P. actually has any plan or even good faith intent to replace the ACA with an equivalent that will serve the American citizenry better. If that plan exists, why have they not been leaking copies of it to the media to prove their point?  And what I have been reading about a Republican plan, I hold little hope that they have a coherent alternative to the ACA, but would foist off on the American people a set of badly conceived and unworkable “programs” that makes the ACA look like the best piece of legislation ever written.

It is very frustrating that even under the ACA, the laws that support the right and the laws that support the economics are completely out of synch with each other. The Republican-controlled House has done everthing possible to keep it that way so as to weaken the whole law and sow discontent out in the country by repeated pointing how bad it is.  Of course, they leave out all the parts in which they have relentlessly worked to ensure that the ACA’s flaws are not corrected.

I have been an advocate for universal health care on the basis of my philosophy regarding creating a healthier America, one that is in line with the other “first nations” of the world, many of whom who have had universal health care for decades (and mysteriously not collapsed into despotic socialist states as many anti-ACA individuals and groups argue will happen, if you believe their inflammatory rhetoric).

Our Inalienable Rights Opened to Their Full Beneficence.

Only when the inalienability of our Rights to the Blessings of Liberty is opened to its full beneficence, can the common citizen be “blessed” to the utmost when his or her illness, injury or other medical condition can be treated–regardless of the individual’s circumstance in life.

I suggest that the right to medical treatment is found in the Constitutional foundation of inalienable rights. Although not enumerated in the Constitution (but also not forbidden if we apply the rights accorded to us in the 9th Amendment of the Constitution—I find it very curious that argument has not been put forth by the proponents of the ACA), a valid proposition for the constitutionality of the ACA can be made by referring to the Preamble, in which the Blessings of Liberty—as specified in the Declaration of Independence: life, liberty, and the pursuit of happiness—are essentially impossible if one is denied access to that very health care. Only when the inalienability of our Rights to the Blessings of Liberty is opened to its full beneficence, can the common citizen be “blessed” to the utmost when his or her illness, injury or other medical conditions can be treated–regardless of the individual’s circumstance in life. Unfettered access to health care, in context, is an inalienable right because none of the blessings can be attained, sustained, or in the case of chronic conditions, controlled to the best medical protocols available at that time, without it.

When universal access to medical care is placed in that frame of reference, it becomes part of the National Covenant in which we all share. Beneficence is the principle that all have the inalienable right to share in the blessings of liberty and that we, through the covenant of liberty, act with altruism for the one as well as for the whole. This is the same rationale used for Social Security and Medicare. Neither of them is enumerated in the Constitution, either. Therefore, the question of who pays for universal health care becomes moot: beneficence directs us toward universal altruism (also a principle of e pluribus Unum—one out of many), so, the only solution is that through our taxes we all pay to protect that right. To ensure that every individual has that right, the body has to contribute to the whole so that the Covenant is guaranteed to all. The denial of inalienable rights to one is the denial to all.

Am I suggesting we by default should be moving toward the so-called “single-payer” system? I have never been an advocate for that as the final solution. But two years after the ACA was signed into law, the current case before the Supreme Court of the United States is a suit based on the most trivial and marginally related arguments against it. It has been brought not by those who have an alternate plan they believe will be superior to the ACA in guaranteeing the Covenant is put into place, but for grossly political motives and just want it eliminated altogether. The ricochet of this legal bank shot just might result in single payer as the unintended consequence of their political hubris.

Ironic? More than a little.

10 thoughts on “Is Health Care a Constitutional Right? Full Text

  1. The square root of 42% cubed is 42% to the power of 3/2 or 1.5, which is 27.2%. Add that to 42% and you get 69.2%. Add state income tax (5% in IL), self-employed FICA 12.4% and Medicare taxes 2.9% and you get 89.5%. Since you assumed taxes would be paid on unadjusted gross income (UGI), this leaves 10.5% for health ins, real estate taxes, liability ins, unemployment ins (if this rich person has hired anyone to work for their business), all business expenses, consumer spending, sales taxes (10.25% in Chicago) and everything else. Your plan would have the unintended consequence of denying children access to education as this is funded primarily by local real estate taxes, so you would need a vast expansion of Federal funding to compensate (then again, taxing all rich people like this would not be adequate to even balance the budget, let alone allow spending increases). And, since you used UGI for your proposal, there would also be no money to pay employees, thus denying them access to jobs.

    Corporations are currently taxed at 35% (highest in the world), less zillions of loopholes, resulting in a nontransparent lower effective tax rate that depends on the individual industry and individual business within that industry. This crony capitalism is what allowed General Electric to pay zero taxes in 2010 despite $billions in profits:
    Note the CEO’s relationship to President Obama. We can find similar examples on the other side of the aisle.

    It sure looks like small businesses (responsible for most job creation) that file taxes as individuals already pay more than their “fair share” and do not have a “fair shot” compared to corporations. And yet, taxing corporations more would drive more U.S. jobs overseas – quite the dilemma. Taxing overseas profits would amount to double-taxation as corporations already pay foreign taxes.

    Note how the Tax Reform Act of 1986 changed the way many businesses pay taxes:

    We will not be going back to the 90% top tax rate under President Kennedy. I do applaud the Tea Party and Republican Presidential candidate Herman Cain who I credit for changing the public discussion from one primarily of spending to taxation. Now, both Obama and Romney propose tax reform. As we move into the heart of the campaign season preceding the November 2012 election, we will hopefully see in detail what tax reform plans are offered by politicians at all levels of govt. The solutions to our problems are achievable if the public is given details in transparent fashion. The current 70,000 page tax code is opaque and filled with countless loopholes created by lobbyists influencing politicians, which makes it impossible to know the effective tax rate for different businesses. A simpler system would be more transparent, and would transform the abstract politically-rhetorical phrase “fair share” into something with practical concrete meaning.

  2. How about 42 percent? It’s a good number. It can be divided a number of ways. It has a more solid feel than a number that ends in a “9”, which in aviation they insist on calling it “niner”. I never have found out the reason for that. Nine really doesn’t sound like any other number, but then why do we say “roger” or “copy” when using radio traffic language, when we could just say “okay” or “yes”? And don’t get me started on “may-day!”

    But the best reason to use the number 42 for the percentage that rich people should have to pay for their taxes is it is the number that Douglas Adams chose in his Hitch Hikers Guide to the Galaxy for the answer to everything. So why use any other, because in the end the actual amount is purely arbitrary, as Paul Ryan has so eloquently proven in the novels he publishes under the guise of budgets and at taxpayers’ expense I might add. So I like 42% not because it make sense but because it doesn’t and for those who are fabulously wealthy or just plain stinking rich, they should have to pay the 42 % and the Cube of the Square of 42 on top of that just for being snooty about it and not wanting to pay their fair share. Now we know what their fair share is: 42% of their gross income (non-adjusted and no other fancy stuff, either) if they are the nice rich people. Those who are haughty about it have to pay the squre root of 42 cubed as a penalty for being rude and just darn close to being unAmerican due to an unconstitutional streak of stinginess. That’s what this Democrat declares is the “fair share” percent of what the rich should pay for their taxes.

    As for the rest of us, we would take all the ways 42% can be divided, 1, 2, 3, 4, 6, 8, and whatever else–as long as it’s a whole number–and each year, by lottery, we would get assigned a number that would be our percentage for the year. Using our gross amount of income, that’s what we would pay that year. The next year we’d, get a new number until we had gone through the whole set, and then start over again. That way you’d only have to pay the bigger amounts once every 6 years, using the digits from my illustration. And we could make the incentive to pay your taxes by threatening to penalize you with having to pay the square root of 42 percent cubes on your income for that year if you insisted in being a stinker over your tax percentage assignment that year.

    So, then you ask, where is the line drawn to end up being one of the fortunate to have to pay 42% when everyone else below you is having to pay at most 8%? Well, let’s make it substantial, say $420.000 a year. There’s something to be said for consistency, after all. That comes to a tax of $176,400 for the year, leaving you with $243,600 for your annual income, unless you were being snotty about it and got hit with the penalty, that comes out to, well…let’s see…ummm, if I set up the Excel formula correctly, I came out with 19.44%. Adding that to the 42% comes out at 61.44% which is substantial enough most of the filthy rich will have good sense enough to keep their mouths shut to avoid the extra penalty. There will be those few, however, who just can’t leave well enough alone and moan and wail that they have to pay their fair share. They’d get no sympathy from me.

  3. Then please give me the numbers that Democrats would consider to be “fair share.” Otherwise, they are “just words,” political rhetoric during the campaign. The presumption is that the current situation doesn’t involve people paying their fair share. Then, once you have the numbers, plug them in to economic models to see how they influence economic growth and the fiscal health of govt budgets. As the campaign heats up this summer, I expect these questions will be raised, and both political parties had better have precise answers.

    I would submit that a complete overhaul of the 70,000-page tax code that eliminates loopholes and subsidies would not only make things more “fair,” but also reduce economic inefficiencies and improve the economic structure. We have the highest corporate tax rate in the industrialized world (as of April 1st 2012), but also a lot of loopholes that bring down that rate – we need a flat rate and minimal loopholes (i.e. get rid of lobbyists) so that there is transparency and everyone is on the same “fair” level playing field. It is unfair that General Electric made $billions in profits yet paid zero taxes last year (partially due to “green subsidies” from the Obama Administration). Note that GE’s CEO is an adviser to the President.

    In Illinois, the Democrats have done the exact opposite the last few years, and we are paying the price. State income and property taxes have skyrocketed, and we’ve had to grant more financial incentives to businesses to bribe them so that they don’t flee the state. Who pays their “fair share” in IL?

  4. From my perspective, “fair share” is a manifestation of the obligation we have to the National Covenant, that intangible cord that binds us together as Americans. For that Covenant to be strong, to paraphrase Lincoln’s famous line, a nation of, by, for, the people, necessarily has to value the one, as much as it does the few, the many, or the all.

    Practically, that means that those who have the most financially should feel a strong sense of responsibility to ensure the Covenant remains strong. Sadly, many (not all, by any means) of the wealthy have retreated to a position of isolationism and regard the attainment and sustaining of their wealth as more important than living up to their obligation to the Nation that made their riches possible to begin with. The position of claiming that every dollar they possess is theirs and theirs alone and the rest be damned, in my way of thinking, is symptomatic of avarice, greed, and an unconscionable miserliness that weakens the country on all levels. At the same time that does not in any way excuse citizens of all socioeconomic levels to shirk their responsibility to the National Covenant under the false assumption that the very rich can save the country so those with much lower incomes don’t have to live up to their part of the deal. They (we, because I fit into this class somewhere) have no right to demand the rich pay more than their share than they do, each according to his or her resources.

    As for the question of who gets to decide. The Constitution is clear that the Congress bears the burden for those decisions. We live in an age, however, when the Congress is dysfunctional to the point of paralysis They cannot be relied upon to seriously take up the question of “fair share” because that involves a serious (and non-partisan to the greatest extent possible) examination of post-2008 economic realities and both Houses are thoroughly incapable of having that discussion.

    So, because of these various factors, groups of like-minded citizens get together and decide on what “fair share” means for them, and then begin to advocate (and agitate) Congress to buy their solution. That’s when they find out the real problem that has infected Congress, which has now developed into political septic shock. It’s anybody’s guess whether the patient can be saved. The short answer to your question is, don’t expect a rational, well-thought-out definition of “fair share” anytime soon.

  5. Candidate Obama opposed the mandate before he was for it:

    “If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house. The reason they don’t have a house is they don’t have the money. And so, our focus has been on reducing costs, making it available. I am confident that if people have a chance to buy high quality health care that is affordable, they will do so. And that’s what our plan does, and nobody disputes that.” – Feb 5, 2008

    Interesting that Romney’s history on this issue is precisely the opposite, though he could claim that individual states could mandate this rather than the Federal govt.

  6. Interesting rhetoric this “fair share” concept is. What is the precise definition numerically (i.e. what precise tax structure determines this? Who gets to determine this? Congress?

  7. Dr. Bogen– [Note: Dr John Bogen is an occasional contributor to Extreme Thinkover.]

    There are two points in the post, one of which I think you are missing. That critical point is the very constitutionality of the PPACA itself as it supports the right to health care, because all legislation has to be grounded there to begin with. My intention in the post is to answer that question, and the way I structure it is to argue both “no” and “yes.” I state “no,” because it is a right enumerated neither in the Articles of the Constitution nor in the amendments. I state “yes” because the Framers wrote the Preamble in such a way that, to me, presumes that there are more rights than they enumerate, but still falls into the category of “inalienable” rights, which once identified through various processes, should be added to the list of already enumerated rights. This is not an efficient way to create law and precedent. I realize that and I’m not an attorney. But because of the nature of the Constitution, it is a valid way to create new laws that can enumerate rights.

    Here is the point I think you are missing: The items you pose in your reply as questions for their validity as constitutional rights is an illustration of the confusion most of us have in understanding what an inalienable right is. There is a test to determine whether an issue rises to the point of inalienability. I would suggest that it is these questions:
    1. What is the impact on your life if you don’t have access to it?
    2. What is the impact on the rest of the populace if you don’t have it?
    3. What is the impact on your life if others have it and you don’t?.
    4. What is the impact on the rest of the populace if you have it and they don’t?
    5. What is the impact on your life if you are denied access to it?
    6. What is the impact on the rest of the populace if you are denied access to it?

    Answering each of these questions, in one sense, is a litmus test for inalienable rights.
    The answers, however, will have a range of generality to them. And some of your suggestions already have been addressed with programs in place for decades. The question of a right to food and shelter has been dealt with through federal monies for food stamps and federal housing programs. So, the general answer to your query regarding food and shelter rights is “yes.” Clothing, as a by-product purchased with welfare money is also part of the package. So any argument against universal access to medical care that doesn’t already perform these reasonable tests for rights, and doesn’t account for what previous generations decided fit into the category of “inalienability” is not a serious examination.

    As for the question, “who decides?” the reasonable answer is two-fold. In the first instance, that decision is made by those we elect who write and vote on the legislation, creating and adding to the rights already established as law. In the second instance, it is those who work for the government (which may include both the public and private sector jobs) who carry out the delivery of benefits that guarantees those rights can be enjoyed by every citizen. However, the real answer is: We do.

    Who pays is related to the National Covenant I mention in the post. To be an American citizen really means you have to accept the whole package, even the parts you don’t like. When we say we are a nation of laws that is not empty rhetoric. But we can also say that as a democratic republic, with elected legislators, the laws we make (and to be honest, we really have to take that responsibility, even when we abhor a particular law) can also be modified or repealed. That is one of the positive aspects of the ACA: the nature of its conception with all its flaws means we will be modifying different parts perhaps for a couple of decades to come. For example, as you and I have discussed at length, we both think that a strong section on medical malpractice tort law should be added to the law. The only thing that stands between us and that reality is convincing our legislators to add that to the law. Granted, that is an oversimplification, but the basic concept is true.

    Under the current pseudosystem masquerading as American health care, we are paying and paying and paying and paying for our access to health care, the rates for which are being set in Board rooms and golf courses across the country by people whose obligations are to their shareholders, not their customers, and God-forbid, the nation. We are paying exorbitant “taxes” to the health insurance cartel (and pharmaceuticals, medical equipment, etc., etc) with no representation whatsoever. They have the right to take our money, demand more whenever it suits their fancy, and we have no right to say no because they have been among those who have engineered a health care “system” to be so expensive that no average person can afford their services or products. Could it be one of the reasons the rich are so resistant to paying their fair share in taxes is they know if they had to pay full-freight for their health care they would be bankrupt just like the rest of us? So as a barricade against that, they swing their influence like a wrecking ball against a glass building to prevent we commoners from realizing the full benefits of our inalienable right to health care, so theirs is not in jeopardy?

    But to go back to the question of who pays?, the answer has to be we all do because, in the end, access to medical care is unique, distinct, and has no real parallel amongst all the other arguments placed beside it. Simply put, it is one of those few things that define what it means to be human. The whole idea of “inhumane” treatment is based on the affect of what that failure to care for the body, or, deliberate abuse of the body, is all about. Nothing else carries that kind of physical, emotional and spiritual weight.

    Because it is the humane thing to do, health access for all Americans is an inalienable right, and it is high time that we invest whatever it takes to drive out the current inhumanities of the practices which pass for medical care.

  8. College education or vocational training?
    Birth control pills?

  9. Are food, clothing, and shelter rights?
    How about running water, electricity, and natural gas?
    Internet access?
    Who decides?
    Who pays?

  10. Just some things to consider. This list is not comprehensive:

    1) If health care is a right, is the means to pay for it also a right, and if so, who gets to decide who pays and how much?
    2) As is, PPACA would seem to be a step in the right direction, but which flaws in it actually reduce access to care on a practical level (either now, 2014, or down the line)? How can these flaws be fixed?
    3) Is it fair for patients to have to subsidize the health conditions of other patients which are caused by poor lifestyle choices (e.g. smoking, obesity, alcohol & drug abuse, irresponsible sexual activity, failure to wear a bicycle or motorcycle helmet, any activity which has a high-risk of physical injury,…)?
    4) Does PPACA encourage portability of health insurance so that people aren’t “locked-in” to their job (which reduces economic efficiency)? What fixes need to be made? Would govt single-payer or the GOP plan be better for this?
    5) Does PPACA adequately control costs and in a fair manner? Would tort reform (to reduce defensive medicine) and the ability to sell health insurance across state lines (increases competition) help? Already I am aware of breast cancer (no routine mammograms under age 50) and prostate cancer (no PSA testing) guidelines determined by the U.S. Preventive Services Task Force that are in opposition to other professional groups and medicolegal “standard of care,” yet are not covered by PPACA. Are physicians protected legally if they do not order such tests? Who is held accountable legally or financially if a patient is harmed if a test or treatment recommended is not paid for by PPACA (as determined by USPSTF or the Independent Payment Advisory Board [IPAB])?

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