Beyond the Market: Health Care as a Civil or Human Right?

[Editor’s note: This article is cross-posted from Human Rights Now, the blog of Amnesty International USA.]

A dramatic disconnect between principles and policies has hampered current US health care reform efforts. This became obvious when candidate Obama declared health care to be a right and then proceeded to treat it as a commodity when negotiating with insurance companies a requirement for individuals to buy a commercial health insurance product.

Similarly, early on in the debate the president championed the principle of universality by promising some form of health coverage – if not necessarily health care – for 46 million uninsured people, only to lower the policy goal to 30 million American citizens in his speech before Congress, excluding many immigrants and low-income people. Since then, further policy provisions that restrict access to health coverage for immigrants – documented and undocumented – and reduce affordability for lower-income people have appeared in the health care bill adopted by the Senate Finance Committee.

With people of color already up to three times more likely to be uninsured than white Americans and suffering from unequal health outcomes, it is no surprise that over the past few weeks a new coalition of groups representing people of color has launched an ad campaign for racial equality in health care reform. With this new advocacy push, prominent national organizations such as the NAACP and the National Council of La Raza (NCLR) are now framing their intervention in terms of people’s rights.

The coalition’s principles state that “health care is a basic human right, as essential as food and shelter,” thus echoing ongoing human right to health care campaigns by organizations such as Amnesty International USA and its coalition partners. A number of mainstream media outlets covered the launch of this new campaign – most notably Public Radio International and WNYC’s The Takeaway, which featured a thoughtful piece aimed at “exploring whether or not affordable health care can be considered a fundamental human right.” However, while the Takeaway reporters seemed prepared to answer in the affirmative, representatives from NAACP and NCLR remained oddly silent on this issue.

That’s because as soon as principles are placed into the realm of policy, they become subjected to pressures created by the dominant political consensus. Translated into policy, the new coalition’s main demands include a so-called public option, steps to eliminate racial disparities, and “complete access and coverage for all legal residents.” The imagery used in their TV ad – people of color denied boarding a bus – emphasizes that the current health care debate should be linked to past civil rights struggles, with a focus on desegregation and formal equality.

Aligning health reform with a civil rights perspective clearly sends a powerful message, but it does come with some definitive drawbacks. Civil rights, rooted in Amendment XIV of the Constitution, do not include non-naturalized immigrants – documented or undocumented. Therefore, while a policy push that narrows health care access to “legal” residents may not conflict with a civil rights approach, it does ignore the human rights principle of universality. Presumably, such a policy is pursued on a purely pragmatic basis, reflecting the dominant tone of the debate, according to which, as stated by a prominent mainstream migration policy organization, “most agree that unauthorized immigrants should not benefit from government spending.”

Yet even on pragmatic grounds, this position is flawed. Provisions put in place to exclude undocumented immigrants from government spending programs, such as citizenship documentation procedures in Medicaid, have been identified as significant barriers to access primarily for African Americans, not immigrants. Those harmful provisions may still find their way into other aspects of health care reform, as well. Whenever we pitch the rights of people of color against those of immigrants, we tend to end up with no rights for either group. No civil rights organization can afford to treat undocumented immigrants as illegitimate competitors for public monies or as potential carriers of disease. And no one can legitimately refer to health care as a human right without recognizing all human beings as rights-holders.

There is another reason why it can be problematic to foreground the language of civil rights, rather than human rights, in the health care struggle. Our basic economic and social rights, such as health care, are more explicitly addressed in the international human rights framework than in the US Constitution. In the past, civil rights have been largely interpreted as equal protection of the law – or formal equality – not as substantive rights in the economic sphere. They don’t lend themselves easily to setting standards that could give a specific meaning to such formal equality. If everyone received equally little – for example if no one got on the bus or, for that matter, if no one received health care – citizens could still be formally equal.

That’s why Martin Luther King, Jr., aimed to move from civil rights to human rights, from desegregation and formal equality to economic justice and equity. In his Poor People’s Campaign, Dr. King intended to tackle health care and similar fundamental human needs as economic human rights and to seek justice beyond judicial decisions. A richer vision of justice means that as human rights advocates we can go beyond demanding equal opportunities in relation to whatever reform measures emerge from DC and constructively advance a more substantive policy position. Such a position would link the goal of a universal, equitable health system to a collective, accountable public financing mechanism for health care that enables everyone in society to share costs and benefits.

None of this is meant to underestimate that a focus on health disparities in the tradition of civil rights wouldn’t be a huge achievement if adopted by policymakers in charge. The disgrace of persistent racial disparities is neglected in the current debate, so much so that a couple of prominent think tanks recently tried to direct attention to this outrage by sidestepping the moral perspective and putting a monetary value on people’s health. Both the Joint Center for Political and Economic Studies and the Urban Institute released reports on how much money could have been saved in direct medial expenditures by eliminating racial disparities in health care ($229.4 billion for the years 2003-2006 according to the Joint Center). Economic or fiscal arguments are assumed to resonate more in our market-centered debate than rights-based arguments. Fortunately, this pessimism is not shared by the NAACP, which in its 880 Campaign is explicitly mourning the needless deaths of 880,000 black people over a 10 year period, due to a higher mortality rate than white people.

In fact, numerous organizations and networks have pushed for the elimination of racial disparities in health for many years, with little media resonance. Some of them have made effective use of human rights in their efforts; for example, the National Health Equity Coalition emphasized in a letter to incoming president Obama that “in order to address racial and ethnic health disparities, it is important that the right to health is implemented so that available resources are utilized in a manner that supports achievement of the highest attainable standard of health for every individual.” And back in 2007 the US Human Rights Network organized a collective report submission to the UN Committee on the Elimination of Racial Discrimination, which included a chapter on racial disparities in health care. In response, the UN committee asked the US government to address health disparities, in particular by eliminating the obstacles that limit minorities’ access to adequate health care.

Amnesty International USA has given its own commitment to help eliminate health disparities through its human rights principles and petition for health care reform. These principles recognize that a health care system must be both universal and equitable – it must include everyone and eliminate disparities – in order to meet human rights standards. Neither universality nor equity can be compromised for more convenient policy positions. Our society must organize the collective public provision of equal high quality health care for everyone – people of color and all immigrants, poor people and people in rural and inner city locations, women and men. This entails, as recognized in the NAACP’s centennial anniversary statement that an organization like the NAACP should follow Dr. King and “shift its mission from achieving civil rights to attaining human rights for all.”

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Anja Rudiger, PhD, is director of the Human Right to Health Program, a joint initiative by the National Economic and Social Rights Initiative (NESRI) and the National Health Law Program (NHeLP) based in New York City.