Mike Magee MD
Presidents College at the University of Hartford
May 5, 2011
The official title of today’s lecture is “The Constitution and Health Care in America.” On the surface, it sounds like a straight forward topic – a simple presentation. But a gentle scratch at the surface reveals a controversy that literally dates back 250 years. And so, as you see here, I’ve added a clarifying subtitle – “A ‘right’, a ‘privilege’, or simply a ‘necessity.’ “
Those of you who have taken my courses before know that I like to begin with a brief outline of what we will be discussing – so here is our agenda. We begin with an introduction to relevant law including the U.S. Constitution and relevant case law. A brief warning here – this may be somewhat painful, but I assure you, it is necessary. History will then take over and carry us up and through The New Deal. We’ll follow Eleanor Roosevelt into the Global Health arena and define our terms – for example “health” is not the same as “health care.” Expert academicians will then join us and weigh in, before we hear the “voices of the people” for a cultural assessment. Which leads us to the epic struggle around Obamacare. And finally, a candid look at what we missed and some predictions of what might come next.
When I began to do the research some months back in preparation for today, one of the very first articles I read was this one in the National Review written by self-described Conservative/Libertarian, John Graham, titled: “The Constitution and Your “Right to Health Care.”
It alerted me from the start that this debate, on the highest policy levels, was about language and semantics. In the article, Graham writes, “I’m willing to concede a ‘right to health care,’ because once it’s defined as a right, the entire weight of the Constitution comes down against federal (and perhaps even state) control…Where the Constitution enumerates rights, it’s pretty clear that the Founders’ bias was that your ability to enjoy any right was dependent on Congress not meddling in it.”
Besides revealing his anchoring bias, Graham was signaling that the argument over “rights” in our nation goes way, way back, literally to the birth of our nation, and arguably continues to this very day. If we allow his to be the final word, we must abandon practicality, prudence, justice, and wise stewardship of resources. Left alone, a battle over the Constitutional “right” to health care, a literal life or death struggle for many in our nation, has been strangely stripped of emotion, compassion, or even self-reflection.
But that is not how it began. Here we see recorded by the painter John Turnball the Committee of Five on July 4, 1776, – John Adams, Thomas Jefferson, Robert Livingston, Benjamin Franklin, and Roger Sherman – presenting their draft of the Declaration of Independence to the full Congress. It’s second paragraph begins, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
This very serious debate was in full swing in pursuit of “consent of the governed” a decade later in 1787 when Alexander Hamilton, James Madison, and John Jay penned the 85 articles and essays that constituted “The Federalist Papers.” Published under the collective pseudonym, “Publius”, their goal was to advance the ratification of the newly proposed Constitution. In their very first article, they wrote,
“It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”
And so, as these very early writings suggest, we sanctioned this “war of words” in the hope of avoiding more deadly confrontations involving “accident and force.”
As I’ve already suggested, Graham’s argument is anything but new. The anti-federalists weighed in right from the beginning about the very same concerns with these words: “…inasmuch as it would be impossible to list all rights, it would be dangerous to list some and thereby lend support to the argument that government was unrestrained as to those rights not listed.”
In direct response and rebuttal, James Madison replied, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”
In this, he was referring to what became the 9th and 10th Amendment to the Constitution, part of what we call “The Bill of Rights” – the first 10 of some 27 permanent changes or additions to the rules of play of our government. So you can see, very early in my own preparations, and now by transference to you today, we are drawn together into the nitty gritty of Constitutional Law. So let’s together review a few things at the outset.
The first words of our Constitution, our Preamble, read: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
I have underlined “promote the general Welfare” – as I will other important words and phrases, because they have been used, from time to time over the past 200 plus years, to argue for or against certain services or proposed obligations or expectations that our citizens might impose upon their government.
Under the Preamble, we find the Articles of Confederation briefly summarized here. In the simplest form, they define the architecture of our government – the structure and powers assigned to Congress, the Executive branch, our Judiciary; our system of courts, and the complex dance between states rights and the proposed powers of this new nation declared as the “supreme law” of the land; the subtle recognition that this is indeed a “living document” insofar as a process for making “amendments” or changes to the original document are here defined; and finally the mechanics of how these Founding Fathers will officially launch this new entity as a binding legal venture.
Each of the eight articles themselves contain complex instructions or rules for the game of governing, powers allocated to the various counter-balancing components of this new nation.
Here you see the powers delineated in just one Section – Section 8 – under Article I for Congress. Ignore for a moment the wordiness of this slide and focus only on those elements I’ve chosen to highlight in Article I, Section 8. They are Clause 1 that allows the new national government the power to “lay and collect taxes” absent which any powers granted would have been a toothless tiger.
Clause 3 provides the power to regulate commerce specifically “among the several states”, which in the end provides a controversial lever to hold out-of-control states in check. This clause has appeared again and again throughout our history in states rights debates.
And finally, Clause 18, known today as the “Necessary and Proper Clause” which allows for Congress to exercise its’ judgment in the years that will follow to exercise its power and control to maintain the Union as a thriving entity. The Founding Fathers understood that as conditions changed, this living document would need to adjust.
They didn’t have to wait long for the first changes. They were enshrined in what we call “The Bill of Rights” briefly summarized here. They were designed largely by James Madison to appease the anti-Federalists who in 1787 and 1788 were fast at work igniting a civil war in a nation that had barely drawn its first breathe. These were assurances, not that the new national government would deliver benefits to its citizens, but rather that they would not “seize” rights that the citizens of the 13 member states currently possessed and jealously guarded.
Thus the enumerated rights are often described, as John Graham did above, as “negative rights.” Madison didn’t grab them out of nowhere. They are actually derived from other sources including the Virginia Declaration of Rights, as well as the Northwest Ordinance, the English Bill of Rights, and the Magna Carta.
As it turns out, Madison was a very good listener. The original 13 listings were eventually trimmed down to just 10 and approved in 1791. Originally, Madison had wanted them inserted into the body of the Constitution, but as a compromise allowed that they would be an add-on. Even so, he added the 9th and 10th amendments to head off several states who demanded reassurances of preservation of state prerogatives and “individual freedoms” before they would sign on.
Amendment IX that reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
And Amendment X which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” It is useful to note, however, that Madison left wiggle-room here in not qualifying the word “delegated” with the iron-clad legal boundary of the word “expressly.”
Madison also made it clear that these protections applied only to the new national government and did not encumber the various state governments. It was only on July 9, 1868, with the passage of the 14th amendment as part of Reconstruction that citizenship and due process were extended (at least on paper) to all, and that states rights to discriminate were challenged.
As with many controversies in human endeavor, the easiest way to decipher history and meaning is often “to follow the money.” Such was the case in the battle between state and federal rights. This battle engaged early and often, with Thomas Jefferson and Alexander Hamilton on opposite sides of the spectrum.
Soon after the 1788 ratification of the U. S. Constitution, Washington’s Secretary of the Treasury, Hamilton, suggested a federal bank to manage debt and currency. Jefferson, then Secretary of State, opposed it for fear of a federal power grab. Regardless, in 1791, Congress created the First Bank of the United States with a 20-year charter.
When the charter ran out in 1811, it wasn’t renewed. But then the War of 1812 intervened – requiring federal dollars – and in 1816 the Second Bank of the United States was created with the Federal government holding 20% of the equity. The divide led to the creation of two political parties – the Federalist Party and the Democratic-Republican Party whose members were committed to undermining the bank.
The battle came to a head when, in 1818, Maryland’s state legislature—levied a $15,000 annual tax on all non-state banks. There was only one – the Second Bank of the United States that was out-of-state at the time. It refused to pay. The suit rose to the Supreme Court with Maryland claiming the right to tax the national government based on their reading of the 10th Amendment claiming state protection against extension of non-enumerated rights to the Federal government.
The landmark 1819 case – McCulloch v. Maryland, Defined the scope of the U.S. Congress’s legislative power and how it relates to the powers of American state legislatures. In ruling against Maryland, Chief Justice Marshall argued that:
“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.”
According to Marshall, it was the people who ratified the Constitution and thus the people, not the states, who are sovereign.
In making his determination, Marshall had invoked the Necessary and Proper Clause of the Constitution suggesting in so many words that the “end justified the means.” In his view Congress was permitted to seek an objective “so long as its end is within the scope of federal power under the Constitution.”
One such enumerated power is the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes” in Section 8, Clause 3 of Article 1.
Cornell Law professors explain, “Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, … The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States…called “The ‘Dormant Commerce Clause’ referring to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce.”
What exactly does this powerful word – “commerce” – even mean? We really don’t know for sure since the Constitution never explicitly defines the word.
Again turning to the scholars, they say, “Some argue that it refers simply to trade or exchange, while others claim that the Framers of the Constitution intended to describe more broadly commercial and social intercourse between citizens of different states.”
What experts do agree on is “the interpretation of ‘commerce’ affects the appropriate dividing line between federal and state power.”
What does all this have to do with health care? You’d be surprised. Let me share one additional landmark case – Griswold v. Connecticut – that bridged an 80 year span, played out in the prime of our lives, and did so right here in Connecticut.
It began on March 7, 1844, with the birth of this man, Anthony Comstock, in New Canaan, Connecticut. Raised in a strict Christian home, his religiosity intensified during a two-year stint in the Union Army during the Civil War.
A member of the 17th Connecticut Infantry, he took great offense to the profanity and debauchery he witnessed in and among his fellow soldiers. With the strong support of church-based groups of the day, and as the self-proclaimed “weeder in God’s garden”, he sought out a purpose and found a political vehicle in New York City’s Young Men’s Christian Association, and parlayed that to a post as the United States Postal Inspector.
His overarching goal was to advance Victorian morality by stamping out smut, which by his definition included obscene literature, abortion, contraception, gambling, prostitution, and more. The political arm he created in 1873, The New York Society for the Suppression of Vice, was chartered by the New York state legislature, and included the twin mottos of “Morals, not Art and Literature” and “Books are feeders for brothels.”
Using local postal agents, his searches and seizures, whose subsequent sales were shared 50/50 with his own organization, bank rolled the lobbying of Congress necessary to pass the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”, otherwise known as the Comstock Laws.
Pornography, contraceptive equipment, reproductive health literature, and books deemed risque’ or suggestive all fell into his crosshairs.
By his own account, prior to his untimely death on September 21, 1915, he had prosecuted 3600 defendants, seized 160 tons of obscene literature, enjoyed the active support of industry, the AMA, and the Catholic Church among others, and sparked equally restrictive and intrusive legislation in 24 states – one of those being Connecticut.
Along the way, he made powerful enemies. For example, in 1905 George Bernard Shaw, on hearing in London that his new play, “Man and Superman” had been removed from the New York Public Library, had this to say in a public letter published in 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 country-town civilization after all.”
A decade later, arch-enemy Margaret Sanger, laid him bare with these words, “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 a family, the earlier they enter the factory.”
It was not power but time that overtook Comstock. He died at age 71 in 1915, but his supporters fought on in an increasingly loosing battle throughout “the Roaring 20’s and into the economic collapse of the nation, the Great Depression, and a looming war in Europe.
With World War II fast approaching, FDR and Justice Hughes weighed priorities and decided indecency was less of a threat to the country than venereal disease among the troops. The AMA lent its support as well, and drugstores responded to the laissez faire by stocking over 600 different “feminine hygiene” products.
But the final nail in the Comstock coffin was fittingly delivered in the crusader’s home state. The protagonist was Estelle Griswold, Executive Director of the Planned Parenthood League. Their first state office had opened in Hartford in 1935. In 1961, Griswold was arrested and fined $100 for providing contraceptives and birth control advice in their New Haven office.
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.
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.”
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?
So let’s take a breath here, and review the various legal milestones we’ve covered in the first part of today’s lecture. We began with the 1776 Declaration of Independence and its “inalienable (read indisputable) rights including life, liberty, and the pursuit of happiness. We then witnessed the 1787 Preamble to our Constitution and highlighted the words “Promote the General Welfare” that over two centuries later has been used by some as a blanket justification for a “right” to health services.
In the Articles of Confederation, we’ve discussed the Taxing Clause, The Commerce Claus, and the Necessary and Proper Clause that will all rise to the fore, as we will see, in attempts to destroy the Affordable Care Act.
We discussed the controversial history of enumerating rights under the “Bill of Rights”; Madison’s attempt with the 9th and 10th Amendment to appease and reassure anti-Federalists; and we’ve begun to explore relevant case law including McCullock v. Maryland which clarified the limits of states rights, and Griswold v. Connecticut which introduced the term “penumbra”, and reinforced that certain additional non-enumerated rights, such as the right to privacy when it comes to intimacy, are common sense extensions of widely accepted enumerated rights.
Before we end today’s discussion, we’ll discuss one more case – National Federation of Independent Business v. Sebelius. But for now, let’s take a break from the law and return to history and language. We left off at The Roaring Twenties, which dramatically collapsed into the Great Depression.
The need for reform, especially following the Great Depression, was obvious to all.
And no one understood the power of words better than the new president, Franklin Delano Roosevelt. Brimming in optimism, he channeled Emily Dickinson who wrote, “A word is dead when it is said some say. I say it just begins to live that day.”
She certainly was on the mark when it came to this President’s signature legislation. FDR’s New Deal, extending from 1933 to 1939, ultimately came down to just three words – the 3R’s – Relief , Recovery, and Reform.
He promised “Action, and action now!” This included a series of programs, public work projects, financial reforms, a national health care program and regulations… to provide support for farmers, the unemployed, youth and the elderly” And he wasn’t afraid to make enemies. Of Big Business, he said in a 1936 speech in Madison Square Garden, “They are unanimous in their hate for me – and I welcome their hatred.”
But he was also a political realist. And by his second term of office Justice Hughes and his Conservative dominated Supreme Court had begun to undermine his legislative successes and were threatening his signature bill- the Social Security Act.
In response, FDR found Hughes’s Achille’s heel. There were no Constitutional restrictions on the number of Supreme Court Justices. So FDR floated the idea of adding a Supreme Court justice for every member (all Conservative) over the age of 70. Known as “Court Packing”, just the threat was enough to dampen the enthusiasm of the Hughes “activist” court. But FDR also compromised – and one of those give-backs, in the face of withering criticism from the AMA, was further movement on national health care.
Now into his Fourth term, with massive public support, on June 11, 1944, he gave voice to a “Second Bill of Rights”, declaring that the Original Bill of Rights was “inadequate to assure us equality in the pursuit of happiness.”
It was clear from the speech’s beginning that he saw opportunity in this moment. He said: “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.”
In FDR’s words: “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.”
What was required, he believed was economic security and that entailed a progressive approach to employment, housing, medical care, social security, and education.
What FDR was suggesting was nothing less that a radical cultural shift. Here’s his itemized list of new “rights”:
• 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 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.
He assigned his Military head of his wartime Organization of Science and Research development, Vannevar Bush, whose successes had led TIME magazine to invite the public in 1942 to “Meet the man who may win or lose the war”, the task of designing a peacetime health delivery system.
But on the eve of its delivery President Roosevelt died.
President Truman was quick to pick up the mantel, meeting with Vannevar Bush, and just six months later stating, “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.”
But the moment was lost. By then the Pharmaceutical Manufacturers Association and the American Medical Association had joined hands, accusing the new President of advancing Socialized Medicine and “following the Moscow party line.”
If President Truman had been placed in check, Eleanor Roosevelt never missed a beat. During FDR’s final two terms as President, she had continued to write and travel building a worldwide portfolio marked by shared beliefs and a focus on poverty alleviation, access to education and civil rights.
Her anchor was Human Rights. As she stated at the Sorbonne in Paris in September, 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.”
Under the auspices of the newly formed United Nations, two months later on December 10, 1948, the U.N. adopted the Universal Declaration of Human Rights.
Of the rights defined and enumerated and endorsed that day was included Article 25: Right to An Adequate Standard of Living. It read:
“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”, and “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.”
One important contribution made that day had a lasting effect. It was a universal definition of health: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” These words formed the basis of the UDHR, a document Eleanor labeled somewhat immodestly as “Humanity’s Magna Carta.”
Under Eleanor’s steady progressive hand, “All men are born free and equal” became “All human beings are born free and equal.” 48 countries, including the United States, signed on as signators.
And these were not merely empty words, even as our citizens rejected the Truman health care plan, their tax dollars supported the creation of comprehensive national health plans under The Marshall Plan – for our two vanquished enemies – Germany and Japan. As the Rand Corporation stated, “Nation-building efforts cannot be successful unless adequate attention is paid to the health of the population.” But what was good enough for them apparently was not good enough for us.
Eleanor Roosevelt died on November 7, 1962. Three years later, Medicare was extended as a public offering to U.S. citizens over age 65. One year later, in 1966, the U.N. ratified the “Covenant on Economic, Social and Cultural Rights” (CESCR) that clearly stated in Article 12: “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
Thirty four years later, in 2000, the Covenant was reconvened and explicitly endorsed the preeminence of health in General Comment #14 with these words:
“Health is a fundamental human right indispensable for the exercise of other human rights.”
Importantly they also emphasized that “The right to health is not to be understood as a right to be healthy.” With this simple phrase, they highlighted that wellness was a shared endeavor between the governed and their government.
In truth, the heavy lifting remains. Issues of respecting, protecting, and fulfilling promises made remain unrealized around the world. To turn the corner, caring societies would need to:
1. Prevent discrimination.
2. Refrain from limitations to family planning.
3. Restrict the denial of access to health information.
4. Reduce environmental pollution.
5. Restrict harmful culturally-based medical practices.
6. Ensure equitable access to social services.
7. Provide proper guidelines for the accreditation of services.
8. Prevent violations of health in other countries.
9. Cooperate in humanitarian aid for disasters.
10. Refrain from use of embargoes on medical supplies or services as weapons in conflicts
In America, CESCR 2000, now two decades later, has created more questions than answers. Here are a few:
1. What is health?
2. What is public health?
3. What are minimum entitlements?
4. Who and what are responsible for providing services?
5. Are human rights and health indivisible?
6. What are the determinants of health?
7. What are the special rights of mothers/infants, disabled, discriminated people?
8. What is the highest attainable standard of health?
9. Is health equitable?
10. Is health affordable?
Over the years, Congress relied heavily on Legislative Attorney Kathleen S. Swediman for answers. Here are a few of her insights.
“The health care reform debate”, she noted, “raises many complex issues including those of coverage, accessibility, cost, accountability, and quality of health care. Underlying these policy considerations are issues regarding the status of health or health care as a moral, legal, or constitutional right.”
When Medicare was created in 1965, its’ enactment had firm legal foundations. Swendiman noted that “As a major component of many health care entitlement statutes, Congress has provided funding to pay for the health services provided under law. Most of these statutes have been enacted pursuant to Congress’s authority to ‘make all Laws which shall be necessary and proper’ to carry out its mandate ‘to … provide for the … general Welfare.’”
“The most frequently utilized grant of power: Article I, § 8, cl.1, ‘[t]he Congress shall have Power to lay and collect Taxes’, … to … provide for the … general Welfare of the United States…Other powers in § 8 for which Congress has the authority to enact ‘necessary and proper’ laws. ”
On the other side, there is no shortage of critics. Legally, they say that a “right” to health care is nowhere specifically defined in our Constitution. What is it, and who is responsible? And if it were passed, it would surely break the bank. Realistically, you can never deliver health/healthiness, they say. And even if you could, Americans would never cooperate or support it with tax dollars.
Professors like Jonathan Mann, director of the Health and Human Rights Center at Harvard School of Public Health, bring political heft to the debate. He agrees with the 2000 CESCR statement that “Health is a fundamental human right indispensable for the exercise of other human rights.” Why? He gives three reasons.
Politically, he says “Health policies, programs, and practices have an affirmative impact on human rights, especially when state power is considered in the realm of public health.” Discrimination is a factor as well. “Human rights violations have health impacts” and he has more than documented them in his books and periodicals. Finally, he documents a propitious cycle. “Protection and promotion of human rights and health are linked fundamentally in a dynamic relationship.”
What is somewhat remarkable is not what Professor Mann says, but rather how long it took to make its’ way from the streets of America to the ivy halls of academic. After all, it was way back on March 25, 1966, during the Poor People’s March that the Rev. Martin Luther King Jr. said, “Of all the forms of inequality, injustice in health care is the most shocking and inhumane.”
Quality and cost measures continued to decline as we entered a new millennium, as public opinion began to shift in the direction of universal coverage, and the debate over health care as a “right” versus a “privilege” was engaged in the public square.
Legal luminaries had already weighed in, sometimes with an edge. Georgetown’s Law Professor, Lawrence Gostin, in 1994, came as close as you could to the argument, “You got a better idea?”
He wrote: “Those who criticize all proposals for achieving universal coverage have the burden of stating what other value should take precedence, and make a reasoned case for their position. It is the conspicuous absence of such a justification by critics that concerns me, and which motivates this article…The prevention of disease or disability and the promotion of health, within reasonable resource constraints, provides the preeminent justification for the government to act for the welfare of society…Health is a necessary condition for just about all aspects of human endeavor…Necessary for pursuit of livelihood…achieving personal satisfaction, happiness, and better personal relationships.”
He penned those comments seven years before President Obama signed the Affordable Care Act Into Law. A decade later, in 2015, the Republicans in Congress had already attempted unsuccessfully to repeal the legislation 67 times.
We’ll get into those legal challenges in a moment. But before we do, it is worth stating that “Obamacare”, as it was popularly known vaulted the debate over the “right” to health care into the stratosphere. Whether in the local watering holes or high school debates, the war of ideas waged everywhere, and was now more about culture than simple the law.
Let’s take a moment to listen in. Here are the arguments of two high school debaters from Alexandria, Virginia’s T.C. Williams High School captured by PBS Newshour in 2013. First we have Meghan Gallagher, age 18:
“The provision of health care is not mentioned in our Constitution or the Bill of Rights…Conservatives believe in personal responsibility, limited government, free markets, individual liberty, traditional American values and a strong national defense…This mantra of ‘let the government take care of me’ is not what this country stands for. … We are far too reliant on the government … We should emphasize empowerment of the individual to solve problems… The additional cost to the taxpayers (of Obamacare) will be huge and a drag on the economy… It is a privilege of where we live to be able to take care of one’s self by our own means…the role of government should be to provide people the freedom necessary to pursue their own goals.”
And now, with equal passion, her classmate, Sam Honora:
“The competition of the game of life should never have to be a game of life and death…campaigning to stretch the unruly rat race of the free market to the lives of millions of uninsured Americans…The opposition to healthcare is more or less condemning the lower economic classes to a life of illness… By what moral compass in today’s world is it right to unflinchingly run to the rescue of someone in a burning home and then deny that same person savior (of health services) from an internal threat…The United States has been playing catch-up with the already established nations…The fact that this is even a discussion in policy making is absurd, further identifying lawmakers’ detachment from their sick and dying constituents… The idea of someone two hundred years later not being able to pay for their chemo treatments most likely did not cross the Founders minds.”
As we can see in this exchange, the “right” to health care had begun to transform from a legalistic debate to a culture busting demand. And not just in high schools. Here we are, two years later in 2017, in Athens, Ohio, a hardscrabble town in the Appalachian foothills. Our guide is New Yorker columnist and celebrity physician, Atul Gawande. He had traveled back to where he grew up to ask his former neighbors whether they thought health care was a right. Listen to how that simple question elicits answers now clothed in Americana jargon.
“I had grown up steeped in a set of core Midwestern beliefs: that you can’t get something for nothing. Here self-reliance is a totemic value.”
“ The notion of health care as a right struck her as another way of undermining work and responsibility… Saying that something is a basic right starts to seem the equivalent of saying only, ‘It is very, very important.’”
“.. A right makes no distinction between the deserving and the undeserving..”
“(We’re treating health care as) a zero-sum proposition. It gives up on the more encompassing possibilities of shared belonging, mutual loyalty, and collective gains.”
“…basic rights include physical security, water, shelter, and health care. Meeting these basics is among government’s highest purposes and priorities.”
‘I think the goal should be security – knowing that, no matter how bad things get, health shouldn’t be what you worry about.”
“What we agree on, broadly, is that the rules should apply to everyone.”
What has America stood for? What will America stand for in the future? Those were the questions being cued up. And leading the way was Bernie Sanders who added his own important follow-up question as Barack Obama entered his first term as President: “If we are to provide quality health care for all, how do we accomplish that in the most cost-effective way possible?”
Fourteen months after his inauguration, the new president would sign into law the most dramatic expansion of our health insurance since the passage of Medicare and Medicaid in 1965 – but at great political cost.
The major changes in coverage – including new insurance offerings, protections for those with prior conditions, a required basic benefit package, employer insurance coverage for children of employees up to age 26, and more would not take effect until four years later. But by then, an additional 20 million plus citizens would be added to the ranks of insured Americans.
The compromises embodied in the bill resulted in support from the major sectors of the Medical Industrial Complex – including the AMA, the hospital industry, pharmaceutical manufacturers and insurers. No price negotiations for the drug industry. A sweetheart Medicare Advantage deal for insurers. Uninterrupted funding of medical education and protected non-profit status for hospitals. This was the price Obama paid to advance coverage, create a basic benefit package, protect pre-existing conditions, and expand Medicaid.
The structure and design were largely the work product of the conservative think tank, the American Heritage Foundation, and dated back to 1989. It had been adopted by then Governor Mitt Romney for Massachusetts’s landmark health initiative in 2006, and its success there became part of a platform to launch his 2012 presidential race six years later.
On March 23, 2010, President Obama signed the Affordable Care Act into law initiating a decade long war with Republicans on two fronts. First, in Congress, Republicans voted to repeal the law more than 60 times, all unsuccessfully. The most dramatic attempt came on July 28, 2017 when John McCain teamed up with fellow Republicans Lisa Murkowski and Susan Collins, and managed to appear in the chamber near death from brain cancer to provide a camera ready “thumbs down to the Trump/McConnell effort.
Over this same decade, Republican led states in parallel had attacked the law on Constitutional terms, chipping away at the statutes, without offering an alternative. Opponents termed the act “Obamacare” as if it were a pejorative label. The President turned that on his critics stating, “I have no problem with people saying Obama cares. I do care.”
“Repeal and Replace” became the rallying call of Republicans as Mitch McConnell committed to making Obama a “1-term President.” He didn’t succeed. But numerous challenges to the Constitutionality of the legislation continue to this day.
26 Republican led states Attorney Generals joined in a suit to challenge the individual mandate which worked its way up to the Supreme Court. This was a component of the Massachusetts law designed to insure that all citizens and organizations would participate and contribute to even risk-sharing essential for insurance viability. Romney had tried to remove the clause from the Massachusetts bill but his veto was overridden by the Massachusetts legislature. In the federal bill the mandate was the “stick” to counterbalance the various “carrots” of premium subsidies. The penalty? The greater of $695 per adult and $347.50 per child or 2.5% of household income
The argument against the ACA mandate became the landmark case – National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The argument for repeal of the mandate was based on the fact that the administration had justified the mandate as constitutional based on the Artice 1 Section 8 Commerce Clause or Necessary and Proper Clause. On June 28, 2012, Chief Justice Roberts disappointed fellow Republicans with a complex decision that split the difference.
As he stated in his closing: “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”
Roberts did support Republicans on a separate issue. The ACA had mandated that all states expand eligibility to Medicaid and agreed to subsidize 90% of the added expense. Republican states challenged the right of the federal government to impose those changes.
The Court’s ruling stated, “As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.”
President Obama praised the decision, and House Speaker Nancy Pelosi remembered the lifelong campaign of Ted Kennedy, who had died of brain cancer 10 months earlier, stating that he could now “rest.” Despite Republican pledges to fight on, as the New York Times wrote that day this ruling “may secure Obama’s place in history.”
At the same time, the paper signaled a partial victory for conservatives and libertarians writing that, “The court’s ruling was the most significant federalism decision since the New Deal…that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want.”
By now, the Affordable Care Act had become a political weapon with which to bludgeon Democrats, and was a rallying cry for Donald Trump in his successful 2016 campaign for the Presidency. With the help of Senate Majority leader McConnell, Trump signed the Tax Cuts and Jobs Act of 2017 into law on December 22, 2017. Vice President Pence declared it a “Middle Class Miracle.” But buried in the legislation was an order to virtually eliminate the ACA individual mandate by reducing the penalty to $0.
Following a playbook laid out months earlier, Republican states filed to claim that the mandate was unseverable from the ACA itself, making it necessary to repeal the act itself now that the mandate was effectively gone. In their third attempt to destroy the bill, Republican Attorney Generals were rebuked, this time 5 to 2 with a special surprise – conservative Justice Brett Kavanaugh joining the majority.
As Roberts said from the bench, “Congress left the rest of the law intact when it lowered the penalty to zero. I think it’s hard for you to argue Congress intended the entire act to fall if the mandate was struck down if the same Congress that lowered the tax penalty to zero did not even try to repeal the rest of the act.”
Through his four erratic years as President, Trump had repeatedly promised repeal of the ACA. In the summer run-up to the 2020 election, he was still saying, “We’re going to be doing a health care plan very strongly.”…stating it was “all ready.” It never came and in November he went down in defeat.
Since Biden has assumed the Presidency, he’s been anything but tepid. He has gone farther and faster than both friends and critics had expected, reading correctly, as FDR did in 1934, that the public appetite for bold initiatives and progressive legislation had grown dramatically in the wake of Trump induced Covid devastation.
Following his recent address to Congress, he spent a good deal of time on the aisle in private conversation with Sen. Bernie Sanders. They’ve been talking a lot lately. In his speech he waded into health care with both feet, and found a way to link the ACA and Medicare.
He said, “The Affordable Care Act has been a lifeline for millions of Americans
…And the money we save, which is billions of dollars, can go to strengthening the Affordable Care Act and expand Medicare benefits without costing taxpayers an additional penny. It is within our power to do it. Let’s do it now.
We’ve talked about it long enough, Democrats and Republicans. Let’s get it done this year. This is all about a simple premise: Health care should be a right, not a privilege in America.”
So while conservative think tankers remain interested in engaging in semantic exercises, and hard core Trumpers still see a road to ACA repeal even as Mitch himself has gone mute on the subject, America seems to be moving on.
What have we learned today?
- Nowhere in the Constitution is a “right” to health care or health care services literally expressed.
- The Founding Fathers made it clear that the Constitution was a “living document” intended to evolve…that is why the steps necessary to amend it appear as the 5th item in our Articles of Confederation.
- The Founding Fathers adequately empowered the federal government as “supreme law of the land” to manage challenges as they arose giving them taxing power, oversight of interstate commerce, and latitude to act where “necessary and proper.”
- That said, rights not enumerated, or defensible as an extension or “penumbra” – are the province of each state and ultimately each citizen.
- Major health care legislation must attract enough votes to pass in Congress, and be signed by the President; and must be able to withstand challenges to its Constitutionality.
With the limited time we have remaining, it’s useful to outline those areas we have not covered.
First of all, we have not covered the case law surrounding decision rights in health care. In the Fall, we will have the luxury of exploring Roe v. Wade, the end of life decisions in the Terri Schivo and Nancy Cruzan cases, and the Opioid epidemic litigation.
Secondly, we have skirted the complex legal issues surrounding health care data. Who owns it? Why was HIPPA passed? And how has Big Tech been accessing that information without your consent for profit?
And finally, when a nation of our complexity refuses to organize health services and health planning on a national scale, what happens during a disaster? Thanks to Covid -19, we know the answer to this one. My book, CODE BLUE, predicted it:
- Infection rates and mortality rates explode.
- Hospitals – unable to share supplies and manpower – are overwhelmed.
- Supply chains collapse.
- Communications and directives vary greatly from one geography to the next.
- Common public health measures to control the outbreak – like simple mask wearing and life-saving immunization – become highly politicized.
In short, by the end of this year, cases will reach 40 million and deaths will exceed 600,000.
So here we are, in the middle of this epic debate, one highlighted by President Biden just last week. A debate part practical, part esoteric, legal and nuanced.
But the reality that I’m fast approaching is that it really doesn’t matter. That’s because – whether a “right” or “privilege”, universal, accessible, affordable and effective health care in America is now a “necessity.”
Here are three reasons why:
1. Performance: By any measure available, our predatory and profit-driven approach is a 70-year old historic misstep that is roughly twice as expensive and half as effective as most of the 36 OCED comparator nations.
2. Economic: This highly inequitable and remarkably variable system now accounts for roughly 1/5 of our entire GDP, powered by a bureaucratic workforce with 16 workers for every physician, half of which have absolutely no clinical function. The resultant corporatized Medical Industrial Complex supports opaque pricing, legal kickbacks, and an integrated career ladder where medical scientists actively collude with CEOs from health insurance, hospital, pharmaceutical and research arenas.
3. Strategic: Our decentralized approach to care lacks any coordinated national strategic public health apparatus. There is no national plan. When stressed by the current Covid pandemic, it failed on a massive scale resulting in the needless deaths of hundreds of thousands of citizens, vast damage to our economy, and near collapse of our major hospitals nationwide.
In the process, it revealed an historic underfunding of public health, prevention, and the social determinants of health, preferring instead to rely on last minute, high science intervention come to the rescue. But silver bullets and silver linings do not a health system make.
The question we need to be asking ourselves – whether you align with health care as a “right” or “privilege” – is no longer a philosophical debate, but rather a practical question.
“What kind of system do we need to create to make America and all Americans healthy?”