Should the United States Create a Human Right to Health Care?

In her recent essay in The Regulatory Review, Carmel Shachar discusses the U.S. Democratic Party’s push to change American attitudes towards health care provision, including potentially establishing access to health care as a fundamental human right. Depending on whether such efforts are successful, she acknowledges that the American system could end up having a closer resemblance to the Canadian health care system. In this context, it is important to consider the challenges in the Canadian single-payer system that directly stem from citizens, politicians, and the media treating access to health care as a fundamental right. The Canadian experience shows that treating health care as a right can hamper rational spending and policy decisions that would otherwise serve to appropriately allocate scarce resources within the overall social safety net. Similar to the Constitution of the United States, neither the Canadian Constitution Act nor the Charter of Rights and Freedoms contained in the Constitution Act codify any fundamental right for citizens to receive health care. Section 7 of the Charter establishes a “right to life, liberty, and security of the person;” however, this right has never been formally interpreted to explicitly establish legal rights to the receipt of health care services. In fact, Section 7 has been used to attack the single-payer health care system in Canada including restrictions on private insurance that form a core tenet of the Canada Health Act. Despite the lack of a formal legal foundation, a majority of Canadians believe that access to health care services is a constitutional right. Over time, federal and provincial legislation mandating government provision of comprehensive, universal health care—such as the Canada Health Act—has entrenched cultural norms with most (but interestingly not all) health care services as a cradle-to-grave entitlement for all Canadians. As a result, similar to Social Security in the United States, health care is commonly regarded as the “third rail” of Canadian politics—an explosive issue often fatal to the politician bold enough to consider making adjustments to it. Although an intense public will to preserve and protect an important part of the social safety net can be desirable, in many cases it also creates a damaging inertia, such that preserving the status quo prevents meaningful reforms that could actually make Canadians better off. The focus of the debate is often injected with unhelpful anecdote and emotion about inalienable rights to certain treatments, rather than a technocratic discussion about providing an essential public service of the highest quality. To illustrate, undue public pressure and political influence often result in counterproductive decisions such as provincial governments approving funding for a patient’s “right” to astonishingly expensive cancer treatments, which an independent regulator may deem to be not cost-effective, while simultaneously failing to deploy scarce resources to provide arguably more vital universal basic prescription drug coverage. Similarly, since most oral care is not covered by the Canada Health Act, a patient may have no right to treatment for a painful and debilitating dental condition that could progress to a potentially life-threatening infection, while potentially having access to unnecessary hospital and ER department visits for minor ailments that are fully funded without user fees or measures used in other countries to discourage them. In addition to skewing the direct allocation of public health care resources within the health sector, treatment of access to health care as a right, rather than an essential public service, makes it difficult to establish reasonable limits to that right which are needed to preserve other portions of the social safety net. In political discourse, rights are often treated as mostly inviolable. Current definitions of potential rights to health care generally include the ability to access care that is needed without suffering financial or other hardship. However, the necessity and overall efficacy of various health care services are clearly highly variable. In Canada, difficulty in constraining the use of health care services threatens to cause massive social harm if health spending continues to crowd out other priorities such as education, infrastructure, development, and environmental spending. Since the public generally views health care as an absolute right, modest attempts at good governance and imposing meager restrictions on services are often met with harsh political blowback. Even relatively popular leaders with high approval ratings can rapidly see public opinion sour on any efforts at reform that alter or skirt the edges of the sacrosanct principles enshrined in the Canada Health Act. There is now good evidence that Canadian governments are underinvesting in social services that help address more powerful determinants of health. That evidence also supports a broad redefinition of what would constitute “health” spending. After all, for many patients, access to education, stable housing, and nutritious food may matter much more than free access to tertiary or quaternary care health services. Finally, treating health care as a right in Canada creates some awkward contradictions about who is entitled to this right. In Canada, any person present in the country is entitled to protection under the rights specified in the Charter of Rights and Freedoms. In contrast, there are still many people in Canada who are frequently denied care, negatively affected when care is delayed, or hampered due to a lack of public insurance coverage. Although recognized refugees are covered by the Interim Federal Health Program, immigration status is the most common reason why some individuals fail to receive coverage. If health care in Canada were truly treated as a legal right on par with all others, those lacking legal residency would still be entitled to the same services as other Canadians. This would be a potentially divisive political development given the partial hardening of traditionally very tolerant attitudes towards immigration. With health care reform being difficult enough to achieve under typical circumstances, would it not be unwise to introduce another polarizing issue into a complicated political milieu? Clearly, parallel difficulties and a potentially poisonous debate also exist in the United States. Overall, the Canadian experience in many ways demonstrates that rather than establishing a “right” to health care in America, it may be more desirable to focus simply on establishing a system of universal insurance that provides high-value essential care to all Americans. Such a program would potentially have broad political support given evolving attitudes since the introduction of the Affordable Care Act. If the United States can aim toward universal care while avoiding the pitfalls of the Canadian approach, it could potentially develop a system that may, in some ways, become the envy of many Canadians