Universal Health Care a Mandate or a Right?

October 02, 2011


October 2, 2011   Universal Health Care a Mandate or a Right?


The requirement that most Americans buy private health care insurance or face a tax penalty is the centerpiece of the health care law passed by Congress and signed by President Obama in March 2010.  The constitutionality of this “mandate” will be decided by the US Supreme Court this session.  The fact that the future of the Affordable Care Act will be decided on the question of the constitutionality of the mandate raises a key question about universal health care in the US.   Should universal healthcare be mandated or should it be a right?


Twenty five years ago, my colleagues and I published a paper depicting the adverse impact of hospitals “dumping” uninsured patients on public hospitals, in this case Chicago’s Cook County Hospital.  We made the case that emergency medical care had to be a right or financial considerations would get in the way of sound medical decision making ( Transfers to a Public Hospital, New England Journal of Medicine Vol. 315, 27 Feb 1986.)  Congress responded by passing EMTALA, the Emergency Medical Treatment and Active Labor Act making the right to emergency medical care and care to women in active labor the only form of universal health care in the United States. The practice of “patient dumping” ended overnight.


Fast-forward to the current health care debate.  In order to achieve maximum coverage under private insurance, the Affordable Care Act mandates both employers and individuals to participate or face a fine.  Under this legislation universal health care is mandated, not a right as under EMTALA.  Under the law, there's a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance.  This is a major weakness of the Affordable Care Act which has the expansion of private insurance as a core strategy to get to universal coverage in the United States.  Compare this to publically funded universal health care. There is no need for a mandate because healthcare would be a right legislated by Congress.  No one could opt out on payment which would be in form of a payroll or other tax as is currently the case with Medicare and Social Security.  Since taxation involves representation, which is the case when Congress appropriates money there could be no challenge to a health care law that had an expansion of universal governmental coverage at its core.


In 1965, the passage of Medicare represented a major advance in the governmental funding of healthcare in the US giving most seniors and the disabled the right to basic healthcare coverage.  Despite its detractors, Medicare has been highly regarded by participants at both ends of the political spectrum.  Had Medicare expansion or some other form of governmental single-payer health option been allowed to proceed as part of the Accountable Care Act, the fate of universal health care in the US would not be in the hands of the nine Supreme Court Justices now.  Until we decide as a nation that universal health care is a right for all and not a mandate we will continue to struggle to achieve health coverage for all.        


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