The Right to Health, the Affordable Care Act, and Non-Treaty Treaties (Part I)

Special guest post by Nicholas J. Diamond

The right to health has played a significant role in global health fora since the World Health Organization first identified the “enjoyment of the highest attainable standard of health” as a “fundamental right of every human being without distinction of race, religion, political belief, economic or social condition” in 1946. Twenty years later, the International Covenant on Economic, Social and Cultural Rights (ICESCR) would set out the right to health in a binding international instrument. Subsequent guidance in 2000 from the United Nations Committee on Economic, Social and Cultural Rights, referred to as General Comment 14, clarified the content of the right to health, as well as articulated four elements—availability, accessibility, acceptability, and quality—that constitute the right.

Despite widespread support in the international community, the U.S. has not ratified the ICESCR. Many have argued that the Affordable Care Act (ACA) is doubtless a significant step toward realization of the right to health in the U.S. Indeed, its design speaks directly, to varying degrees, to each of the four elements of the right to health. While I acknowledge the significance of the ACA in advancing the right to health in the U.S., there are at least three reasons to doubt its ability to fully advance the right.

First, the right to health is an inclusive right, meaning that it conceives non-discrimination in the broadest sense. Indeed, inclusivity is so central to the normative foundation of the right to health that full enjoyment of the right implicitly accounts for a nation’s available resources, but not to who it fundamentally applies. In contrast, the ACA omits two important groups, nonimmigrants and undocumented immigrants, from provisions designed to increase the availability of health insurance coverage. For the approximately 11 million undocumented immigrants in the U.S., this means exclusion from, among others, purchasing health insurance coverage through the Health Insurance Marketplaces.

Second, characteristic of any human rights-based approach to health, General Comment 14 echoes the 1948 Universal Declaration of Human Rights and related international instruments in its emphasis on addressing the social determinants of health as part of advancing the right to health. Many of the social determinants highlighted in General Comment 14 as crucial to the right to health, including food, clothing, and housing, are not addressed in the ACA.

Finally, the right to health is not mere theoretical norm, but serves as the guiding principle for development of national health strategies. General Comment 14 suggests various steps to facilitate appropriate implementation, including adoption of a framework law to operationalize the strategy, identification of appropriate indicators and benchmarks, and access to appropriate remedies in the event of a violation of the right. Consideration of whether the ACA fully advances the right to health must, therefore, query the nature of implementation and not solely legislative design.

This reveals significant concerns including, among others: significant cuts to the Prevention and Public Health Fund; the ramifications of National Federal of Independent Business v. Sebelius on Medicaid, which has resulted in approximately 3.1 million poor uninsured adults falling into the coverage gap, of which 56 percent, are Hispanic, African-American, or other adults of color; and repeal of the Community Living Assistance Services and Support program (CLASS Act), aimed at providing financial support to the approximately 12 million Americans of all ages require long-term services and support.

In Part II (to be published 1/14), I will argue for a renewed commitment to advancing the right to health in the U.S. Responding to shortcomings in the ability of the ACA to fully advance the right is, in my view, a matter of coalescing domestic health policymaking around the right to health. I consider an alternative (and slightly less politically burdensome) option for ratification of the ICESCR, a congressional-executive agreement (“non-treaty treaty”), which would codify a normative commitment to the right to health and shepherd subsequent domestic health policymaking.

Nicholas J. Diamond, JD, MBE, trained in both law and bioethics, frequently speaks and writes on various issues in public health law. He is also a LL.M. candidate in global health law at Georgetown Law.

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