Thursday, June 25, 2015

qotd: Next step: Establishing health care as a right through single payer



No. 14–114. Argued March 4, 2015—Decided June 25, 2015

Congress passed the Affordable Care Act to improve health insurance
markets, not to destroy them. If at all possible, we must interpret the
Act in a way that is consistent with the former, and avoids the latter.
Section 36B can fairly be read consistent with what we see as Congress's
plan, and that is the reading we adopt.

The judgment of the United States Court of Appeals for the Fourth Circuit is


The New England Journal of Medicine
June 25, 2015
The Elusive Right to Health Care under U.S. Law
By Jennifer Prah Ruger, Ph.D., M.S.L., Theodore W. Ruger, J.D., and
George J. Annas, J.D., M.P.H.

Is there a right to health care in the United States? No U.S. Supreme
Court decision has ever interpreted the Constitution as guaranteeing a
right to health care for all Americans. The Constitution does not
contain the words "health," "health care," "medical care," or
"medicine." But if we look deeper, a more nuanced picture emerges. The
Court has found rights to privacy, to bodily integrity, and to refuse
medical care within the vague right to "due process" contained in the
Constitution. The Court has also constructed a right to decide to
terminate a pregnancy, although it has also ruled that the government
has no obligation to subsidize the exercise of this right. When this
line of cases is considered together, it would appear that the U.S.
Constitution provides scant affirmative obligation to provide health care.

Despite the absence of a universal right to health care in the
Constitution, Congress and the Supreme Court have incrementally crafted
an incomplete web of health care rights during the past 50 years. In
prisons and emergency rooms across the country, physicians and medical
institutions have for decades been required to provide medical care. In
a 1976 landmark decision in Estelle v. Gamble, for example, the Supreme
Court found a right to adequate medical care for prisoners grounded in
the Eighth Amendment of the Constitution.


It is notable that all three of these litigation efforts against the ACA
— the 2012 ruling on the individual mandate, the 2014 ruling in Hobby
Lobby, and the forthcoming ruling on subsidies for exchange participants
— arise from the devolved structures of American health governance; none
of the three issues would be valid constitutional or statutory
objections to a taxpayer-financed single-payer system. As the Court
ruled in Hobby Lobby, religious objections to general taxation used to
finance national imperatives are not protected as strongly as the
specific claim of Hobby Lobby against the regulatory mandate of the ACA.
Perhaps paradoxically, under the Court framework, a completely
single-payer system is more constitutionally sound than the ACA
statutory design, which aims to preserve a private institutional role in
the health care system.


Comment by Don McCanne

According to the Supreme Court, Congress's plan was "to improve health
insurance markets, not to destroy them," and thus they upheld the
subsidies for the plans offered through the state insurance exchanges.
But Congress has failed to establish a process through which absolutely
everyone is assured of health care when needed. That is, Congress has
established health care as a right only in selected circumstances, but
not for everyone. In contrast, as the authors of the NEJM article state,
"…under the Court framework, a completely single-payer system is more
constitutionally sound than the ACA statutory design…" Enacting a single
payer system would finally establish health care as a right throughout
the United States.

Physicians for a National Health Program release on the King v. Burwell
decision by the Supreme Court:'subsidies-upheld-but-health-needs-still-unmet'-doctors-group

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