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7 The US in Comparative Perspective: Healthcare as a Legally Guaranteed Right in European and Other Nations

7 The US in Comparative Perspective: Healthcare as a Legally Guaranteed Right in European and Other Nations

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INTRODUCTION



17



effectively with the moral and practical demands of healthcare provision.76 Acknowledging this does not make Europeans anti-market or anticapitalist, it simply yields a less ideological and more empirically based

response than the one provided by the most uncompromising advocates

of limited government. Many American conservatives perceive a government guarantee of healthcare as an ideological attack on capitalism rather

than a realistic assessment of its inability to adequately meet the needs

of all citizens in a democracy adequately, equitably, and in accordance

with principles of justice and human rights. Indeed, proponents of limited

government and most Republicans do not claim that the free market will

guarantee every American health insurance as this is not a relevant concern

for ardent supporters of limited government; the US is the only Western

country with uninsured citizens precisely because the markets dominate

healthcare provision and are minimally regulated.

Bismarck created the first universal healthcare system in the world

in Germany in 1883. He recognized what has since become a widely

accepted belief amongst European conservatives that universal healthcare provision contributes to social cohesion and unity.77 This belief and

attitude has never achieved currency in the US.  Although the signers

of the Constitution stated that one of its aims was to ensure “domestic

tranquility,” neither they nor legislators serving in Congress and US state

government legislatures ever advanced plans to enable a system of universal healthcare so as to advance domestic tranquility. All Western European

countries which have offered near-universal or universal healthcare to their

citizens for decades, including government-run single-payer systems such

as those in Sweden and the UK, exist alongside vigorously capitalist philosophies and practices of government. However, in American political

culture and conservative ideology in particular, there is a presumed irreconcilable tension between support for free market policies and capitalism, and the governmental provision of social services aiming to equalize

opportunity and provide for the basic needs of citizens.

A majority of national constitutions (67.5 percent) guarantee healthcare

of some form or at least acknowledge its importance and the rights of citizens

to access it, though not necessarily in a universal or comprehensive manner.78 In Europe, the European Union’s Charter of Fundamental Rights,

which guarantees many of the legal protections of the US Constitution,

differs markedly from its American counterpart, the US Bill of Rights, in

that it explicitly defines and protects a right to healthcare.79 It states that:



18



N. SCHIMMEL



Everyone has the right of access to preventive health care and the right to

benefit from medical treatment under the conditions established by national

laws and practices. A high level of human health protection shall be ensured

in the definition and implementation of all of the Union’s policies and

activities.80



Some nations’ constitutions explicitly guarantee healthcare to all citizens.

The Czech Constitution, for example, states that: “The state is obliged to

guarantee the right to life and the right to protection of health, and health

care for all.”81 The Portuguese, Belgian, Spanish, and Polish Constitutions

all guarantee a right to health.82 The right to health protection is found

in Article 11 of the preamble to the 1946 French Constitution and was

reaffirmed and incorporated in the preamble to the Constitution of the

Fifth Republic of 1958.83 Furthermore, the European Union’s Charter

of Fundamental Rights incorporates social and economic rights alongside

civil and political ones, and in this way is markedly different from the US

Bill of Rights and the US Constitution. Article 33 of the Charter guarantees the right to “paid maternity leave and to parental leave following

the birth or adoption of a child.” Article 34 addresses social security and

affirms the “entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents,

dependency or old age.”84 Many of the constitutions of nations in the

developing world also guarantee healthcare provision.85

However, whether or not a country’s constitution and/or laws explicitly guarantee government provision of healthcare or government guarantee of health insurance may bear little relation to the actual provision

of healthcare in a particular country. As noted earlier, universal healthcare is largely limited to wealthy industrialized countries. While there

are some exceptions to this, such as Rwanda86 and many Latin American

countries,87 the implementation of universal health insurance has been

overwhelmingly limited to wealthy, middle and upper-income countries.

Some of these countries, like the Czech Republic, have constitutions that

explicitly guarantee a right to health, while others, such as the Netherlands

and Germany, offer universal health insurance although there is no constitutional right to it. In the UK, the right to health was formalized by

the Human Rights Act of 1998, but in effect, due to the National Health

Service (NHS), such an entitlement of citizens had existed for almost 50

years.88 In all countries where universal insurance is offered, however,

there is a legal basis for it and legislation providing for citizen access to



INTRODUCTION



19



healthcare codifies the health rights of citizens and the programs of healthcare to which they are entitled to avail themselves.

Many of the world’s poorest nations have constitutions which guarantee healthcare but which are systematically disregarded by governments

both because of a lack of resources and because of other government priorities. Thus, while countries like Cambodia affirm the rights of citizens

to healthcare in their constitutions, this has little if any impact on actual

healthcare provision due to their lack of financial and human resources

and government policies that do not prioritize healthcare and often prioritize military expenditures, subsidies to business, infrastructure, and other

social services. Such nations also face problems with corruption, waste,

and inefficiency in healthcare expenditure and contracts.89



1.8



HEALTHCARE REFORM TODAY: OBAMA’S

AFFORDABLE CARE ACT



The national healthcare policy debate that Obama initiated in advancing

legislation for near-universal health insurance in 2009 and 2010 which

culminated in passing the Patient Protection and Affordable Care Act

(hereinafter the Affordable Care Act), which expands health insurance

to cover most Americans irrespective of income, revealed deeply polarized stances between Democrats and Republicans, with Republicans vigorously rejecting the legislation and none voting for it in the House of

Representatives, where it relied exclusively on the votes of Democrats

and one independent for passage.90 Since its passage, Republicans in the

House of Representatives have voted to repeal the Act partially or fully at

least 63 times and continue to press for its repeal.91

Highlights of the Act signed March 23, 2010, include the ban on

discriminating against individuals with pre-existing conditions, government subsidies for individuals who cannot afford healthcare, an individual

mandate requiring Americans to hold healthcare, a ban on lifetime limits on

essential medical services, and insurance exchanges where citizens can pick

amongst a variety of health plans offered by private insurers that must meet

certain government criteria for quality and affordability.92 Even with the

passage of the Affordable Care Act, however, healthcare remains a highly

contested right, with a close Supreme Court ruling which affirmed its legality, with five justices defending it and four denying its constitutionality—a

victory for the law, but a clear indication of the strength of its detractors.93



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N. SCHIMMEL



The Affordable Care Act will make healthcare affordable and accessible to most Americans, but its coverage will not be completely universal.

Individuals will be able to opt out of the individual mandate for religious

and/or financial reasons. However, in principle, it will make healthcare nearuniversally accessible and affordable through government-regulated cost

control mechanisms, subsidies, and legally sanctioned requirements for substantive and qualitative healthcare insurance and provision standards. Still,

even when fully implemented, there will still be a substantial percentage of

Americans without health insurance of up to approximately 10 percent.94

Recent changes to the implementation of the Act, as a result of the

Supreme Court ruling which affirmed the legality of the Act but simultaneously protected the right of states not to expand Medicaid as widely

as the Act demands, now call into question how much coverage the indigent will receive from it in states (overwhelmingly states with Republican

governors and/or Republican majorities in state government) which are

choosing not expand Medicaid as extensively as the Act had initially mandated prior to the Supreme Court ruling which struck down the required

expansion of Medicaid.95 Until states change their policies and/or the

federal government provides new subsidies for those indigent Americans

unable to access Medicaid but also shut out from government subsidies,

fewer Americans than intended will receive the full benefits of the Act.

Republicans depicted the Affordable Care Act as a government takeover

of healthcare, a giant bureaucratic mess which some described as “socialized

medicine” and a waste of precious government resources. They argued that

it is antithetical to their philosophy of limited government and maximal

individual freedom, and they ignored or outright rejected the principle that

healthcare provision should be universal in the US: guaranteed for every

American citizen as it is in every industrialized Western country.96 They

feared the expansion of government programs, recognizing the significance

of creating an entitlement to health insurance as potentially undermining

the Republican ideology of limited government, low taxes, and minimal

social services and welfare provision. Frank Luntz, a pollster who has

worked closely with the Republicans on political advocacy and rhetorical

strategy stated “we had to block it because it threatened to become another

massive government takeover and entitlement.”97 He also stated that the

Republican Newt Gingrich felt that “this would ruin the country and in

the short term ruin our party by giving something so big away to so many

people.”98 Sometimes patently false claims were made, such as Sarah Palin’s

insistence that Obama’s legislation would create “death panels” that would

determine which senior citizens would have access to life-saving care and



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