In 2008, when presidential candidate Barack Obama announced his views on health care in a televised debate, he proclaimed that health care "should be a right for every American."
In a landmark ruling Thursday, the U.S. Supreme Court narrowly upheld Mr. Obama's Patient Protection and Affordable Care Act – a law that is expected to extend coverage to the 30 million to 50 million Americans who are currently vulnerable to non-treatment, aggravated health problems and financial devastation if they become ill.
While the judgment refers to access to affordable insurance, it does not speak in terms of a human right to health. The effect of the constitutional ruling, however, is to continue the United States on its incremental path toward a right to health.
The U.S. Constitution, like its Canadian counterpart, is silent on the right to health. The silence has two consequences. First, when a health matter presents a constitutional question, the courts are obliged to rely on existing or implied constitutional standards, liberties or powers to resolve the question. Thus, in the 1900s, the U.S. Supreme Court upheld mandatory vaccinations as a public health necessity, consistent with state powers. In the 1960s, it struck down a Connecticut statute that forbade "anyone from using contraception" as a violation of the right to privacy. In the 1980s, the court ruled that an individual "liberty interest" included a constitutional right to decline medical treatment.
Second, constitutional silence on health leaves to the legislature the power to define explicit health rights or duties, like consent standards, institutionalization procedures or public insurance for equal access to health care. Indeed, it has been through legislation that access to health care was advanced in Canada and around the world on the moral view that there should be equal access to health care, to absorb and pool the vicissitudes of ill health and to free citizens from suffering and uncertainty.
In the U.S. context, beyond legislating federal monies for Social Security in the 1930s, and monies for federal hospitals and community access in the 1940s, the U.S. Congress has incrementally legislated federal coverage to vulnerable populations: seniors and indigent individuals in the 1960s (Medicaid), uninsured patients in emergencies in the 1980s, children in the 1990s. Such legislation has furthered positive rights to health care. Typically, it has done so under its constitutional spending and taxing powers and powers over interstate commerce.
The U.S. Patient Protection and Affordable Care Act seeks to expand access to health insurance through a wide range of provisions, including a ban on the refusal to insure individuals with pre-existing conditions, funding preventive services, mandating individuals to purchase minimal insurance from private companies and extending Medicaid. In a closely divided opinion, the court upheld the individual mandate under Congress's general taxation powers. However, it limited the federal government's power to impose certain restrictions of the expansion of Medicaid under its spending powers. Although argued in technical constitutional terms, the decision advances access to health care and furthers the fundamental human right to health – a right first recognized in the Universal Declaration of Human Rights in 1948.
The opinion reveals a Chief Justice aware, like many of his predecessors, of the court's moment in history, the legitimacy of the court and its judgment, and of his leadership. The decision is a momentous step forward. Yet, history teaches us that implementing such landmark decisions often proves as challenging as the titanic struggles before the court.
Derek J. Jones teaches health law and Colleen Sheppard teaches comparative constitutional law. They are members of the McGill Centre for Human Rights and Legal Pluralism.