The 28th Amendment

The litany of U.S. health care woes is depressingly familiar: the only industrialized nation without universal access to health care; 44 million persons uninsured, most of them employed; one in every four Americans either uninsured or underinsured on any given day; an infant mortality rate higher than that of most other industrialized countries; decent care at the end of life increasingly unaffordable; a life expectancy ranking between 16th and 21st in the world (black men in Harlem are less likely to reach the age of 65 or even the age of 40 than are men in Bangladesh)the list goes on. Tragedy is compounded by irony here, given that we already spend $1 trillion annually on health care and that the quality of care, for those who can get it, is unparalleled. Looking ahead, there is the special irony that we may never realize the enormous potential benefits of the Human Genome Project because persons found to be at increased genetic risk are likely to be excluded from health care coverage. What's worse, the system continues to unravel despite an ever-changing patchwork of laws, organizations, and financing plans designed to increase access for at least some groups (1-3) and despite the best economic times the country has known for decades. As noted by Donald Light elsewhere in this issue (4), employer-based insurance is shrinking, coverage for poor children is lagging, and the managed care revolution is widely seen as being at least as pernicious as beneficial. And what will happen when recession hits, as it inevitably will? It hardly bears thinking about. In short, the health care system in the United States is an embarrassing, world-class mess. Of course, our inability to make a better, if not a perfect, system does not result from lack of trying (5). Unfortunately, our deep distrust of central governmental control, coupled with our profound faith in the moral precepts of commerce and the market (6, 7), our driving need for personal autonomy, and our occasional spasms of intense partisanship, have frustrated our best efforts at system improvement. True, most Americans are intensely aware of the hazards of exclusion from the health care system and, at some level, value the principle of social justice that underlies equity (if not equality) in access (8). But that principle has somehow never found enduring public expression. At times, it seems that nothing short of a constitutional amendment will prevent us from continuing to turn our backs on the health care problem, as we have done under at least five different administrations dating as far back as 1935. In point of fact, when it comes to health care, we lack the kind of basic rights established by the Constitution for certain other areas of life. For the most part, it is true, the Constitution protects citizens against the law and the state rather than against the community and nature. But slavery was as much a moral, social, and economic outrage as it was an oppressive instrument of the state, and the remedy chosen to put it right once and for all was the Constitution (the 13th Amendment), not simply the law. There is, moreover, a harsh irony in a Constitution whose Sixth Amendment gives citizens accused of crimes the right to assistance of counsel but nowhere gives citizens who are sick the right to assistance of medical practitioners. Indeed, it was recognition of this very irony that helped launch the most recent, albeit again unsuccessful, major effort at health care reform (9). Are health care, and health itself, rights? As alien as the concept seems in this country, both are widely, indeed almost universally, accepted as rights elsewhere: in the United Nations Charter; the Universal Declaration of Human Rights; the International Covenant on Economic, Social, and Cultural Rights (which the United States has yet to ratify); and the Convention on the Rights of the Child (now formally adopted by all nations except Somalia and the United States), among other statements (2). These international positions simply highlight further the irony in our Constitution, and although the implications of health and health care as human rights are still hotly debated, the case in favor, in our view, has never been stronger. We therefore propose that the Congress and the people of the United States be given the opportunity to approve an amendment to the Constitution stating: All citizens and other residents of the United States shall have equal access to basic and essential health care. What would this amendment do? First, it would mean that everyone in the United States with a stake in the issue (10) would be required to come together and agree on the meaning of basic and essential health care. That will be extremely difficult, but not impossible; the state of Oregon has already done a pretty fair job of it (11), and others are developing tools to get at the problem, with some success (12). We would then need to figure out how to make that level of care accessible to everyone, including how to foot the bill for italso not an impossible task, given the staggering amount of money already in the system. The point here is that, unlike in previous eras, there would be no escape; we could run, but we could no longer hide. The simplicity of the proposed amendment is not an accident. In contrast to the hugely complex legislation proposed in the Clinton Administration's health care plan, the amendment conforms to the principle that complex adaptive systems (and the health care system is certainly one) are not usefully guided by complex rules; they require simple rules based on a deep understanding of the way such systems function (13). More particularly, it is important to note that the language of the amendment intentionally says nothing about how a system of equal access should be organized and financed. Those are matters that belong to the people, the states, and the Congress, through whatever combination of legislation and the market seem to work best. Indeed, as Alain Enthoven (14) has pointed out, a key characteristic of the most effective health care programs in this country today is that they operate under broad statutes, with authority to do the right thing, and with comparative freedom from legislative micromanagement, much like the principle behind the Clean Air Act and other such legislation. Moreover, precedents are not lacking for ways to achieve universal access, at least at a minimum level; some states have already put together such programs, and knowledgeable people have put forward various plans for accomplishing that goal on a national scale (15, 16). What's wrong with the proposed amendment? Some will argue that it is a mistake to consider health care a right because 1) rights are adversarial and individual and handled by the courts, whereas health care policy is a population issue that belongs in legislatures; 2) rights override all other social principles, with the potential for social chaos; and 3) transforming everything good and useful into a right dilutes the very meaning and power of the concept. Those critics will ask, for example, why health care should receive constitutional protection any more than, say, food, clothing, or shelter? In response, we would point out that the basic needs for food, clothing, and shelter are highly predictable and generally affordable, whereas a person's need for even basic health care is minimally predictable and more often than not unaffordable. Moreover, as noted by various economists, the positive externalities of health care are more compelling than those for the other necessities of life; that is, the taste for improving the health of others appears to be stronger than for improving other aspects of their welfare (8). More to the point, the basic intent of the Constitution, as stated in its preamble, is to promote the general Welfare, expressed most generally by protection against depriving any person of life, liberty, or property or denying any person within its jurisdiction the equal protection of the laws (the 14th Amendment). Without the wherewithal to achieve the things they want, persons are, in fact, deprived of the freedom to choose between alternative lives (17)what has been called equality of capabilities (8)and health is obviously an essential part of that wherewithal. Some will argue that socioeconomic status and public health measures are important determinants of healthmore important, perhaps, than health care in the usual clinical sense (18). We agree. But even if the socioeconomic woes of the country were somehow solved tomorrow (which they obviously won't be) and public health received the support it has always deserved (but has rarely received), the need for basic and essential health care would remain; indeed, it is likely to grow as the population ages. More important, the amendment does not exclude consideration of socioeconomic status or public health action as key elements in achieving health; on the contrary, it could drive us to broaden the definition of health care to include them. Some will argue that the amendment would force the health care system to provide everyone with every possible medical service, thereby breaking the bank. But that is exactly why the amendment carefully specifies basic and essential health care. The care needed to provide equality of capabilities does not include doing everything that is medically possible. And, of course, the language does not exclude doing more if the resources are available. Still others will be concerned that the amendment would be the camel's nose in the tent, raising the fear that the body of the beast, with its ugly big-government and single-payer humps, is bound to follow. As noted, however, the language of the amendment is broad and simple precisely to keep its implementation as flexible and decentralized as possible. A constitutional right to health care does not require a direct federal role in its organization and delivery any more tha