The Right to Health Care and the U.S. Constitution: Session II.

Mike Magee M.D.

Listen Here: (FDR 1936, Madison Square Garden Speech: “I welcome their hatred.”)

In Session II of this four-part series, we’ll travel across a century, and around the world, as we explore the meaning of health and the right of humans to have access to healthy environments and a range of services critical to “life, liberty, and the pursuit of happiness.”

We begin again where we started in our first session, with John Graham asking that we confine our attention to a narrow semantic argument over the presence or absence of the word “right” in the U.S. Constitution. But as we learned on January 6, 2021 – 234 years after the writing of our governing national document, the security and permanence of our rights are never fully secure without our active participation as citizens – citizenship that was granted, as we learned in Session 1, in 1868 with the passage of the XIV Amendment.

The challenge remains, as Alexander Hamilton laid out in Federalist No. 1 “…to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice.”

As we learned last week, the arguments that erupted in violence and lawlessness in 2021 were as old as our Constitution. Anti-Federalists in 1787 feared a strong national government that would threaten the independences of member states; a “monarchy in disguise”; and an intrusion into their daily lives and personal liberty.

Those disagreements, rather than drawing our people together, served as a dividing line between Federalists and an anti-Administration party that would become the Democratic Republican party. This new opposition party would go on to elect our third and fourth Presidents, Jefferson and Madison.

In Session I, we covered a great deal of territory. We have learned that the Preamble to our Constitution was an introductory statement of values which carried no legal weight in the arguments over governance that would arise in the future. The articles of Confederation – eight of them with Sections and clauses, is the rule book for formulating and conducting a government “by the people, and for the people” – at least some of the people. Article I, Section 8 drew our special attention because clause 1 on Taxing Power, clause 3 on Commerce, and clause 18 on legitimizing actions that are “Necessary and Proper”, have been critical throughout our history in allowing our federal government to flex its’ muscles. We also reviewed the Bill of Rights, our first 10 Amendments of some 27 that would expand our Constitution. We briefly visited the Reconstruction Amendments (XIII, XIV, and XV), and acknowledged that what was given was subsequently taken away with the landmark case, Plessy v. Ferguson in 1892. (To learn more about this period of history, I point you to Will Smith’s excellent series airing now called “Amend.”)

This new government learned as it went along. Our third branch of government, the Judiciary, played an early role in curbing the revolutionary instincts of the opposition. As we have seen, 32 years after the writing of our Constitution, Chief Justice John Marshall in McCulloch v. Marshall, 17 U.S. 316 (1819) pushed back on the state of Maryland that attempted to muscle the new national government by imposing a tax on the nation’s Second Bank of the United States.

Most significant, beyond the decision, were his words that became the Supreme Court’s first landmark precedent. He wrote, “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Of course, the rights under our national law were not universally available to all Americans. For this to occur, our nation had to wage a devastating Civil War, and enforce a Reconstruction so that in 1868 the 14^th Amendment might (at least on paper) extend Due Process to all. That Amendment was signed on July 9, 1868. With it, citizen rights and “equal protection under the law,” were extended to former slaves of the defeated Confederacy. This new law was bitterly contested by Southern states that were forced to ratify it in order to regain Congressional representation.

Due Process as outlined in the XIV Amendment became one of the most cited legal precedents, as we will see, in a wide range of cases including Brown v. Board of Education (1954), Roe v. Wade (1973), Bush v. Gore (2000), and Obergefell v. Hodges (2015).

Finally, in our first session we explored together the meaning of the word “encumbered” when it comes to health care rights in America. Limited, obstructed and blocked were some of the words you offered. As to who was doing the encumbering, the list included profiteers, politicians, conservative Christians, racists, misogynists, states rights activists, and medical researchers. Why ride on the back of health care? For power, profit, control, societal advantage, and career enhancement.

As we will see in this session, the U.S. Constitution is anything but static. In some cases, the establishment of justice, or the unraveling of injustice may take more than a century.  Let’s turn our eyes to this opening landmark case – Griswold v. Connecticut. This is Anthony Comstock, born on March 7, 1844, in New Canaan, Connecticut. He was the son of a wealthy farmer and a very religious mother. Anthony’s  favorite activity with her was said to have been nightly reading of “Bible about saintly heroes battling satanic foes.”

They lived comfortably on their 160-acre farm with two saw mills managed by Comstock’s father, Thomas. His father led a daily prayer service and his mother drew the family in for all day services at the New Canaan Congregational Church. She was the mother of ten children, three of whom died of childhood diseases. Her own death, when Anthony was ten, resulted from massive hemorrhaging following the birth of her tenth and final child.

Following intermittent attendance at local schools incuding the New Britain High School, he was employed as a general store clerk in Winnipauk, Connecticut. Argumentative and self-righteous by nature, he was not above bending the law in his favor. When a local saloon owner refused to stop selling alcohol on Sundays, Anthony snuck in after hours in 1862, draining the spickets, and leaving behind a threat to escalate the violence if the owner remained. He moved out of town.

This would be the first of a long list of lives ruined in the years ahead. His course was redirected by the Civil War death of his older brother, Samuel, in 1863 at Gettysburg,  which led him to enlist. From a safe perch in Florida, he aggressively challenged his drinking, gambling and smoking comrades with little success. A daily ration of whiskey with meals was discarded by the zealot, but drew few supporters from among the ranks.

When the Civil War ended, he joined large numbers of rural Northerners who steamed into the cities. In 1866, Comstock found a physical and spiritual home in New York City’s Young Men’s Christian Association, or YMCA. Their major thrust at the time was to address the city’s burgeoning interest in obscenity and pornography. Comstock was a one-man sting operation. He would secret himself in a book store, purchase banned material, and then report the store owners to police and encourage their arrests.

As he was developing a reputation, he had time to meet Margaret Hamilton, ten years his senior, and married her in January, 1871. Eleven months later they gave birth to a daughter. When she died at 6 months, they adopted a little girl named Adele. The following year, Comstock led the way for the YMCA in advancing federal anti-obscenity legislation. Comstock’s special contribution was to add material promoting contraception or abortion to the list of already banned mailings considered obscene.

On March 3, 1873, the bill titled “An Act for the Suppression of Trade in, and the Circulation of, Obscene Literature and Articles of Immoral Use” was presented to Congress. Three days after the passage of what became known as the “Comstock Act”, Comstock himself was appointed by President Grant as a special agent of the U.S. Post Office, with authority to enforce the bill that bore his name. To aid in this effort and distance themselves from their overly zealous patron, the YMCA incorporated the New York Society for the Suppression of Vice in New York City, and appointed Comstock the Society’s special agent with powers to make arrests. The law allowed for fines up to $5000. Once the U.S. Postal Service received the fine, they provided a kickback to Comstock who was now able to drop his regular job as a dry goods merchant.

As the self-proclaimed “Weeder in ‘God’s’ Garden,” he targeted pornography, contraceptive equipment, reproductive health materials, as well as gambling and drinking establishments. Two of his favorite sayings were “Morals, not Art and Literature”, and “Books are feeders of brothels.” During this period, the Women’s Suffragette Movement was gaining steam, which included women’s efforts to control their own reproductive decisions. They met stiff resistance.

As one historian has noted, “During that time, women began advocating for the right to vote and for access to contraceptives to control their own reproduction. That movement caused concern for many individuals who argued that if women had access to birth control they would start having sex outside of marriage.”

Comstock jumped in with both feet. No surprise that in his New York Times obituary, the paper highlighted his pugnacious personality with this observation, “Mr. Comstock made a large number of his arrests personally and was frequently in violent fights in which he was well qualified to hold his own, even in his later years, by reason of his huge physique and his experience as an arresting officer. Early in his career he was slashed across the face with a bowie knife by one of his prisoners. On half a dozen occasions he was knocked down and beaten, but more often attempts at force ended badly for his prisoner.”

By 1915, Comstock proudly declared that he had already arrested 3600 defendants, and, with the support of industry, the AMA, and the Catholic Church, had confiscated and disposed of 160 tons of obscene mail and literature. But he also overplayed his hand with some regularity. For example, in 1904, he confiscated popular playwright, George Bernard Shaw’s latest work, “Mrs. Warren’s Profession”, from the shelves of the New York Public Library. Shaw, who was traveling in London, shot off this missive to the New York Times, “Dear Sir – Nobody outside of America is likely to be in the least surprised. Comstockery is the world’s standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep seated conviction of the Old World that America is a provincial place, a second-rate George Bernard Shaw country-town civilization after all.”

Then there was the infamous 1913 threat to incarcerate a New York art dealer who was displaying the original, and very popular, Paul Chabas painting of a nude titled “September Morn.” Comstock apparently was unaware that hundreds of thousands of lithographs of this painting already hung in homes across the nation.

Finally, beginning in 1910, he decided to pick a fight with a determined women’s rights activist, who, as one biographer has noted, “…came by her beliefs honestly. After watching her mother suffer through nearly 20 pregnancies and listening to her ex-Catholic father’s radical speeches (often at the neighborhood watering hole), she took up the cause of women controlling their own sexuality and fertility.”

Margaret Sanger’s motto – “No Gods, No Masters”, said it all. In the fifth year of their pitched battle, Sanger, by then self-declared “The Woman Rebel”, published and boldly distributed “Family Limitation.” If that wasn’t bad enough, she also penned in July of 1915 an editorial titled “Comstockery in America” which read in part, “We know the capitalist class must have a slave class, bred in poverty and reared in ignorance. That is why it is quite consistent with their laws that there should be a heavy penalty of five years’ imprisonment for imparting information as to the means of preventing conception. Industry…(must) undersell its rival competitors. They have only one way to do this, and that is to get labor cheap. The cheapest labor is that of women and children; the larger the number of children in the family, the earlier they enter the factory.”

Sanger literally ran Anthony Comstock into his grave. He dropped dead a few days after an especially trying court encounter with the steel hardened advocate. She went on to live a long and fruitful life including the establishment of the predecessor to Planned Parenthood of America. She had her missteps along the way – as for example her involvement with the Eugenics Movement in the 1930s which we’ll discuss more in Session 3. But it’s fair to say, that in her, Comstock had met his match. He died on September 21, 1915, and is buried in a cemetery in Brooklyn, NY.

In attendance at his funeral were his wife Margaret, and his one daughter, Adele Comstock. Of course, his followers carried on the good fight in many of the 24 states that had created state laws that in turn spawned politicians like Comstock, anxious to create names for themselves. But it was a loosing proposition by the 1930’s. As the country struggled with joblessness and hunger, vice was a lower priority.

But the real nail in the coffin was delivered by the Supreme Court, with support from the American Medical Association in 1937. As we began preparations for a coming war in Europe, goodness and morality were no match for soldiers predilection to becoming disabled by venereal disease. There would be a pressing need for contraceptives and frank talk, currently outlawed by Comstock Laws. By 1938, most states and the federal government had quietly dismantled enforcement. Condoms were everywhere, and the average drug store carried 600 different “feminine hygiene” products. By 1950, only two states with powerful Catholic populations, still had Comstock laws on the books – Massachusetts and Connecticut.

The final assault on Comstock was fittingly delivered in the crusader’s home state in 1965. It did not go quietly.  Connecticut has a long and storied history of women’s rights activism. One of the earliest proponents was actress Katherine Hepburn’s mother, Katharine Martha Houghton Hepburn, who had a close friendship with Margaret Sanger.

But the state also had a long record of antipathy toward women as well. Connecticut’s Comstock Law was passed in 1879, just six years after the federal legislation. The state legislator who sponsored the bill was none other than Circus ringmaster, P.T. Barnum.  Though hardly ever enforced in later years, the law technically made it illegal to use “any drug, medicinal article, or instrument for the purpose of preventing conception…”under threat of  “… fines not less than fifty dollars or imprisonment not less than sixty days nor more than one year or be both fined and imprisoned.”

The states leading university, Yale, played an organizing role. Their beef was that women of means could simply flout the law, while the poor and disadvantaged literally had no place to go for services or advise. The Yale Medical School’s Department of Obstetrics and Gynecology was led by C. Lee Buxton M.D. He decided to team up with the Planned Parenthood Association which had established its first clinic in the state in 1936 in Hartford.  His plan was to open another clinic in New Haven and eventually challenge the law. His literal “partner in crime” would be a Yale and Planned Parenthood patron, Estelle Griswold.

Griswold knew the territory well. She had grown up in Hartford and attended high school there. In 1921, she enrolled in Music classes at the famous Hartt School. A year later, she struck out to test her skills as a singer and performer in Paris. Along the way, she met her future husband, Dick, a Yale graduate and accountant. By 1927, they were back in the states, and married at the Cathedral pf St. John the Divine in New York City. She found employment as a singer on radio on the NBC “Red Channel.” Dick reconnected with the Yale Community, and with the war approaching, joined the State Department. After the war, the two traveled the world, he with the State Department, and she now, having gained some medical training at George Washington University in D.C., as an employee of the new United Nation’s Relief and Rehabilitation Administration. Once their tours ended, they returned to New Haven, he as a professor, and she as the new Director of Planned Parenthood for the state.

Since contraceptive services weren’t available for poor women in the state, they initially organized relief trips to neighboring New York and Rhode Island, as they planned with Civil Rights activists in Yale’s Law Department to challenge the law. In the lead was a woman activist lawyer, Catharine C. Rorabach, granddaughter of CT Supreme Court Justice Rorabach, the only woman graduate of Yale Law School in 1948, and a resident of Litchfield, CT.

The first real attempt to challenge the law had come in 1943 from the Waterbury based Planned Parenthood clinic. In this case a doctor filed suit on behalf of his patient, claiming her special need for the services, and the illegality of the statute based on it denying her XIV Amendment “Due Process.” The Supreme Court refused to hear the case based on a technicality, claiming the doctor “lacked standing” – that is, he was not the injured party.

The second substantive case was presented by Dr. Buxton and Estelle Griswold in 1961. Poe v. Ullman also failed to win access to an appeal because the Supreme Court stated that the case was “not ripe” – that is to say that the plaintiff’s had never been charged or threatened with prosecution under the law they were attempting to challenge. Absent an offense, there was not controversy for the Court to resolve.

Rather than give up, the Yale based legal think tank went back to the drawing board and sketched a strategy to entrap state officials into a controversy. Their goal was threefold: 1. Get arrested. 2. Have standing. 3. Challenge the constitutionality of the state law.

Together they came up with a plan that would draw the state out, and force charges against them with the law that had laid dormant for years. They identified Rosemary Stevens, associated with Yale Law School, who agreed to be the potential subject of their future court case. She was of child-bearing age, married with a husband who supported her actions in seeking contraception.  Finally, she was willing to deliberately and publically break the law.

They created a paper trail of Stevens provision of contraceptives and advice from Buxton and Griswold at the New Haven Planned Parenthood Clinic, and essentially turned themselves over to the local police.

By establishing a clinic, and themselves as directors, who might be arrested for defying the law, they could firmly establish standing. They would need to be convicted and fined to ripen the case. And they would need to have a argument against the law’s constitutionality that would hold up in Supreme Court.

On November 1, 1961, the new clinic had a very public and defiant opening on Trumball Street in New Haven. The very cooperative arrest and charging had been pre-arranged and well publicized. As planned, both Dr. Buxton and Ms. Griswold were charged, convicted, and fined $100 each for providing contraceptives and birth control advice– but not finger printed, by a pre-arranged agreement with the police department.

That arrest led to a landmark suit in the Supreme Court with effects far beyond Comstock. On June 7, 1965, in a 7 to 2 decision, authored by Justice William O. Douglas, the Supreme Court issued a 7–2 decision and struck down Connecticut’s state law against contraceptives. While some legal critics believe the decision might better have been based on a gender equality argument based on the XIV Amendment “Due Process” law, the Supreme Court instead used a unique argument based on an unenumerated right to privacy.

In the Majority Opinion, Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.”

In justifying the decision, he introduced an astronomical term, penumbra – the partially shaded outer region of the shadow cast by an opaque object such as the Earth.

In Justice Douglas’s words, “The provisions of the Bill of Rights created ‘emanations’ of protection that created ‘penumbras’ within which rights could still be covered even if not explicitly enumerated in the Constitution. The language and history of the Ninth Amendment reveal…that there are additional fundamental rights, protected from governmental infringement, which exist alongside those…specifically mentioned in the first eight constitutional amendments…To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever… Rather, the Ninth Amendment shows a belief …that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”

The silent emanations to which Douglas referred derived from, and were spelled out in, the Bill of Rights. Specifically they included Amendment I, II, IV, and V…and Amendment IX and X.  Of course, the elephant in the room, was self-evident. If “privacy” at the intersection of health and intimacy resided in the protective shield of “penumbra”, how about health itself? Doesn’t it deserve similar treatment?

Griswold v. Connecticut became  one of the most referenced landmark cases in history in part because of the majority opinion which featured the voices of four legal legends.

Justice William O. Douglas emphasized “the right to marital privacy lies within the ‘penumbra’ of the Bill of Rights.” Justice Arthur Goldberg defined this right as “a personal right retained by the people within the meaning of the Ninth Amendment.” Finally, Justice John M. Harlan II and Justice Bryon White emphasized that “privacy is protected by the due process clause of the Fourteenth Amendment.

Connecticut citizens were now officially free of a law that had been rarely enforced for over a decade. But significantly, all Americans now had their “sexual privacy” protected from government intrusion. As a result, a series of cases were successfully built on top of this precedent setting ruling. These included:

Eisenstadt v. Baird (1972) – Contraceptives for Single Adults.

Roe v. Wade(1973) – Abortion Legal in Non-viable Fetus.

Lawrence v. Texas (2003) – Texas Anti-Sodomy Law Unconstituional.

Obergefell v. Hodges (2015) – Same Sex Marriage Legal.

This would seem to be a good moment to pause and review. We have covered the Preamble to the Constitution (one of two Preambles – the other attached to the Declaration of Independence), which have no legal standing in Constitutional law debates.

We discussed the history of the Articles of Confederation and its refinement between 1781 and 1787. We’ve flagged three clauses in Article 1, Section 8 of that document including clause I (the “Taxing Clause”), clause 3 (the “Commerce Clause”), and claus 18 (the “Necessary and Proper Clause”). These three have special relevance in landmark cases that impact the advance of federal provision of citizen privleges.

We have reviewed the first ten Amendments to the Constitution (our Bill of Rights) and their provision as part of a compromise between Federalists and anti-Federalists in order to assure the ratification of 9 of the original 13 states of the new “supreme law of the land.” Specifically, we discussed Madison’s addition of Amendment IX that the absense of a right on the enumerated preceding list can not be interpreted as an excluded right; and Amendment X which makes clear that “non-delegated” rights belong to the state and the citizens, not to the Federal government.

Finally, we’ve begun to explore case law. We reviewed McCulloch v. Maryland in which Chief Justice John Marshall suggested in so many words that when it came to Federal power ‘the end justified the means.” Specifically, he wrote: “It was the people who ratified the Constitution and thus the people, not the states, who are sovereign.” And the Necessary and Proper Clause permits Congress to seek an objective “so long as Congress’s end is within the scope of federal power under the Constitution.”

We also learned that rights stated are not necessarily rights granted, as with the XIV Amendment appearance to endure “Due Process” requiring a Civil War to permit passage in 1968. We traced further historic evidence of  the law limiting rather than protecting rights in the person of a Connecticut born zealot, Anthony Comstock. And the final state Comstock Law, in Connecticut in 1865, following a carefully laid political trap by “Friends of Yale” who managing to get themselves charged and have the contested “standing” necessary for the offense to be adjudicated by the Supreme Court.

Finally, from that case, decided 7 to 2, we saw in Justice Douglas’s majority opinion, that resolving the dispute at hand is often far less important that the precedent it establishes that can effect future decisions for many years. We all learned, in Douglas’s discussions of “emanations” and “penumbras”, that the Constitution is alive and evolving, and requires interpretation. But as we see in the modern era, the composition of the Supreme Court may become a critical lever in future judgments made.

What should be clear by now is that, when it comes to law and the U.S. Constitution, words are the leading edge of change. But equally true, words in support of precedent have a lasting impact. It is also humbling to note that progress can be reversed by a future ruling. Consider that at this moment, a Conservative dominated Supreme Court is considering cases from Texas and Mississippi designed to overturn hard won abortion rights in the case of Roe v. Wade which we’ll be considering next week. Words and decisions as it turns out can be legally contested.

As Emily Dickinson wrote, “A word is dead when it is said some say. I say it just begins to live that day.”  And with words come disagreement which is a good thing according to conservative columnist, Jonah Goldberg. He wrote, “Our country, if you read the ‘Federalist Papers,’ is about disagreement. It’s about pitting faction against faction, divided government, checks and balances. The hero in American political tradition is the man who stands up to the mob – not the mob itself.”

No one understood the power of the word, or standing up to a mob, better that four time U.S. President Franklin Delano Roosevelt. Taking over in the middle of the Great Depression, he announced what he labeled “The New Deal” with 3 R’s – Relief, Recovery, and Reform. He announced “…action, and action now” through “…a series of programs, public work projects, financial reforms, and regulations…to provide support for farmers, the unemployed, youth and the elderly.”

No one stood up to a mob like FDR. In a campaign speech on October 31, 1936 at Madison Square Garden, he literally taunted his enemies with these words:

“For nearly four years you have had an Administration which instead of twirling its thumbs has rolled up its sleeves. We will keep our sleeves rolled up. We had to struggle with the old enemies of peace: business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering. They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob. Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me – and I welcome their hatred.”

But FDR was a pragmatist as well, and knew that to accomplish lasting change, he needed the law and Chief Justice Charles Evans Hughes on his side. But by the 2nd half of his first term, the Supreme Court though its decision, signaled a willingness to dismantle New Deal legislation, and challenge his yet to be established landmark legislation – the Social Security Act. When gentle politics didn’t work, FDR signaled to Hughes that he was seriously considering adding an additional judge to the Court for every Justice over 80 – all of whom were conservatives. Legally he was on firm ground to do so. Nowhere in the Constitution is the number of Supreme Court Justices defined.

The threat alone was enough to get Hughes to slow down, and Social Security passed. As the modern day Social Security site describes, “Wilbur J. Cohen, who was a 21-year-old research assistant to the Executive Director of the Center for Economic Security and later served as Secretary of Health, Education, and Welfare, wrote: ‘If any piece of social legislation can be called historic or revolutionary, in breaking with the past and in terms of long run impact, it is the Social Security Act’ . . .The Social Security Act established two types of provisions for old-age security: (1) Federal aid to the States to enable them to provide cash pensions to their needy aged, and (2) a system of Federal old-age benefits for retired workers. The first measure was designed to provide immediate assistance to destitute aged individuals. The second was a preventive measure intended to reduce the extent of future dependency among the aged and to assure workers that their years of employment entitled them to a life income.”

What we see in the details is FDR’s tip of the political hat to the third rail of American governance from its very beginnings – states rights. Thirty years later, LBJ would follow a similar construct with partial success by offering federal grants to states to establish Medicaid. But for FDR, that would have to wait. While the original New Deal planning included a version of national health care, it was sacrificed to the American Medical Association as a compromise to assure passage of Social Security.

Sacrificed but not forgotten. In his fourth term, Roosevelt returned to the war of words with a vengeance. Now an insurmountably powerful wartime President, he asserted that the time had come for a “Second Bill of Rights” declaring that the original was now “…inadequate to assure us equality in the pursuit of happiness.”

That final term, as you will recall, is part of the Preamble to the Declaration of Independence, a political argument rather than a legal doctrine. The most powerful phrase that year from FDR however was this: “Necessitous men are not free men.”

As he further elaborated,

“We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.

‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known.

We cannot be content, no matter how high that general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth—is ill-fed, ill-clothed, ill-housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights…

As our nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.”

That was the long version. His notion of economic security came down to just five items: employment, housing, medical care, social security and education. What he did not know at the time is that public health leaders in the future would define these items as “social determinants of health.”

Instead, FDR chose to define this radical cultural shift as “rights” with these words:

“Among these are:

         •The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

         •The right to earn enough to provide adequate food and clothing and recreation;

         •The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

         •The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

         •The right of every family to a decent home;

         •The right to adequate medical care and the opportunity to achieve and enjoy good health;

         •The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

         •The right to a good education.”

These were not simply empty promises for the ailing President. During this same time, he called in Vannevar Bush, his wartime science chief who had guided everything from his immunization program to treatment of venereal disease to the creation of penicillin to radar to the A-bomb, and asked him to prepare to position his resources to create a national health plan for U.S. citizens. This was the same man whose brilliance and reputation had earned him the cover of TIME magazine two years earlier.

But months later, before Bush could deliver his report to the President, FDR died on April 12, 1945 of Congestive Heart Failure. Harry Truman stepped in and picked up the fallen hero’s agenda – including health care. On November 19, 1945 he said, “Millions of our citizens do not now have a full measure of opportunity to achieve and enjoy good health… The time has arrived for action to help them attain that opportunity and that protection…as a definite public responsibility.”

Corporate America and the American Medical Association smelled weakness and pounced. In 1946 Congressional Hearings, AMA leaders testified that Truman and his supporters were “Following the Moscow party line!” The President didn’t buckle declaring that “The health of this nation is a national concern.” He laid out five priorities: rural doctors, rural hospital quality, national health leadership, scientific discovery, and universal health insurance. His special concern was children, saying, “The health of American children, like their education, should be recognized as a definite public responsibility.”

In response, the AMA took to the papers. In the New York Times, AMA Chairman of the Board, Dr. Elmer Henderson wrote, “There is neither hope nor promise of progress in this system of regimented medical care. It is a discredited system of decadent nations which are now living off the bounty of the American people – and if adopted here it would not only jeopardize the health of our people but would gravely endanger our freedom. It is one of the final irrevocable steps toward state socialism- and every American should be alerted to the danger.”

“Decadent nations living off the bounty.” Who’s bounty? What nations? The answer was spelled out a half century later in a carefully written report by the RAND Corporation assessing the success of nation-building under the Marshall Plan following WW II. The focus of that program was helping our vanquished enemies, Germany and Japan rebuild and establish thriving democracies. In the RAND report, analysts stated it plainly, “Nation-building efforts cannot be successful unless adequate attention is paid to the health of the population.” The report went on to declare the Marshall Program an unqualified success.

What the report did not say was that what was good enough for German and Japanese citizens – access to health planning, prevention, nutrition, sanitation, health services and insurance – was not good enough for our own citizens. The AMA and pharmaceutical industry, conflating communism and socialized medicine as unwelcome riders on national health plans, saw to that.

In the end, President Truman got what he could out of Congress. He funded notable expansions of medical schools and rural hospitals, launched the National Institutes of Health, and fleshed out the pathway to Medicare that LBJ would carefully tread 15 years later.

While Truman focused on domestic health, FDR’s independent and brilliant wife, Eleanor, set about to launch a global health initiative that would stand the test of time. As she stated in 1948, “People who have glimpsed freedom will never be content until they have secured it for themselves… People who continue to be denied the respect to which they are entitled as human beings will not acquiesce forever in such denial.”

Eleanor Roosevelt was in San Francisco, CA, on April 25, 1945 where representatives of 50 countries gathered at the United Nations Conference on International Organization. Two months later, they had drafted and then signed the UN Charter. The new international organization was called the United Nations.

Roughly three years later, on December 10, 1948, a still young United Nations signed the Universal Declaration of Human Rights (UDHR.) Eleanor Roosevelt, who led the effort, called it “Humanity’s Magna Carta.”

As with our Declaration of Independence and our U.S. Constitution, it too has an aspirational Preamble that deserves a careful read. It states:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, therefore,

The General Assembly,

Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

According to the UN, the UNDR  “sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages. The UDHR is widely recognized as having inspired, and paved the way for, the adoption of more than seventy human rights treaties, applied today on a permanent basis at global and regional levels (all containing references to it in their preambles).”

Eleanor Roosevelt’s lasting contribution to the effort was this definition of health endorsed by the U.N. on December 10, 1948; “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”

Her hand is all over the UNDR’s Article 24: The Right to an Adequate Standard of Living. It’s first two clauses read:

1. 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.

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Fifty two years later, the UN in it’s 2000 International Covenant on Economic Social and Cultural Rights completed the loop, laying the groundwork not only to a “right” to health, but also echoing FDR’s “Necessitous men are not free men” by affirming that health is “indispensible for the exercise of other human rights.”

A final statement for you to ponder as we prepare for Session 3: “The Public Square” is this,

“The right to health is not to be understood as a right to be healthy.”

In Session 3, we’ll deal with reality and religion, landmark cases focused on life and death, medical experimentation and more. We’ll hear professional and personal voices from the public square. There is no shortage of opinions and controversy as we continue to explore how best to create a healthy nation.