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

Special guest post by Nicholas J. Diamond

In Part I, I argued that the Affordable Care Act (ACA), while a monumental step toward improving health care in the U.S., does not fully advance the right to health in a few key respects. 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.

Full advancement of the right to health in the U.S. requires a normative commitment to the content of the right as articulated in General Comment 14 and related instruments. This commitment requires internalization of human rights-based norms in domestic health policymaking. Such a commitment would not only encourage the consensus required to design appropriate domestic health policies, but also provide valuable guiding principles to shepherd implementation.

Given the current political climate around the ACA, coupled with an ongoing Presidential election, statutory amendment of the ACA in order to more fully advance the right to health is highly unlikely. What is more, reliance on the rulemaking process to advance the right to health, absent an appropriate statutory foundation, would be misplaced because agency rulemaking authority is itself a statutory construct.

In the alternative, ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) could provide just such a commitment. The U.S. is, however, very unlikely to ratify the ICESCR as an Article II treaty. Historically, the U.S. has been reluctant to commit to international human rights instruments and the current Administration has expressed its intention not to pursue ratification (at least as an Article II treaty). Absent ratification, through which international norms are internalized in national policies, it remains unlikely that the right to health becomes a guiding norm in U.S. health policymaking.

Rather than pursuing ratification as an Article II treaty, a congressional-executive agreement (“non-treaty treaty”) is a viable alternative. As with ratification under Article II, a congressional-executive agreement binds the U.S. to an international agreement, but like a simple statute, requires only a majority in both houses of Congress. Under the doctrine of interchangeability, congressional-executive agreements may serve as full substitutes for Article II treaties. In fact, congressional-executive agreements are far more common than treaties and have been used across all international agreement subject matter, including the North American Free Trade Agreement and the World Trade Organization agreements.

Although a lower bar than securing two-thirds support in the U.S. Senate for an Article II treaty, ratification as a congressional-executive agreement still requires significant Congressional support. If achieved, however, codification would have many advantages. Others have argued that the key advantage of codification derives from the enforceability of a statutory violation. In my view, however, this ignores obvious difficulties around the mechanisms for enforcement; judicial remedies are no panacea.

More importantly, codification would carry significant normative force. The significance of codification of a human rights-based approach to health in domestic health policymaking should not be underestimated. It would not only signal commitment to the underlying norms of the right to health to the international community, but also lay the groundwork for subsequent legislative efforts that would reflect those same norms throughout domestic health policymaking. The ACA contains no such guiding norm or norms and, therefore, has struggled to unify disparate policy efforts oriented toward improving the very elements of the right to health—availability, accessibility, acceptability, and quality—identified in General Comment 14.

As we consider novel ways to reduce the growth rate in health care spending, improve health outcomes, and the like, let us not overlook the value in rooting our efforts in a human rights-based approach to health.

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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