Rights to healthcare in the United States: inherently unstable.

I. INTRODUCTION Although international covenants have long recognized a fundamental right to healthcare,1 and other countries provide healthcare coverage for all of their citizens, rights to healthcare in the United States have been adopted only grudgingly, and in a manner that is inherently unstable.2 While a solid right to healthcare would provide much benefit to individuals and society, the political and judicial branches of the U.S. government have granted rights that are incomplete and vulnerable to erosion over time.3 Unfortunately, enactment of the Patient Protection and Affordable Care Act (ACA) does not change these fundamental weaknesses in the regime of U.S. healthcare rights. Millions of Americans will remain uninsured after ACA takes full effect, and rather than creating a more stable right to healthcare, ACA gives unstable rights to more people. As a result, even if ACA survives its constitutional challenges, access to healthcare still will be threatened by the potential for attrition of the rights that ACA provides. II. CONSTITUTIONAL RIGHTS Historically, rights to healthcare in the United States have been weak because courts have rejected the possibility of "positive" rights under the Constitution.4 Rather, constitutional rights are largely limited to "negative" rights.5 In other words, while the Constitution may preclude government from interfering with the autonomous choices of people, it does not require government to facilitate the exercise of individual autonomy.6 Thus, for example, legislatures may not prohibit women from obtaining an abortion before their fetuses are viable, but they need not provide funding for women who cannot afford the cost of an abortion.7 Similarly, legislatures may not prevent patients from receiving treatment for their illnesses or injuries, but nothing in the Constitution imposes a duty on government to ensure that patients can in fact obtain needed care.8 To be sure, a duty to provide healthcare attaches when the government confines people in prisons, psychiatric facilities, or other institutions, since the individuals are not free to seek healthcare on their own.9 But for most people, the Constitution is not helpful.10 Accordingly, when people are unable to afford medical treatment, they have had to rely on common law or statutory rights to healthcare.11 III. STATUTORY RIGHTS TO HEALTHCARE A. THE GRUDGING NATURE OF U.S. HEALTHCARE RIGHTS Statutory rights are the primary source of rights to healthcare in the United States, but they have been adopted only grudgingly.12 Consider, for example, the history of Medicare and Medicaid. 1. The Passage of Medicare and Medicaid Medicare and Medicaid grew out of a five-decade history of efforts to enact national health insurance in the United States.13 The effort began around 1912 during the Progressive Era.14 Germany and other European countries had adopted government healthcare plans by then,15 and Teddy Roosevelt championed healthcare reform in his losing presidential campaign of 1912. When Roosevelt lost to Woodrow Wilson, the cause was taken up by the American Association for Labor Legislation, which supported healthcare coverage for industrial workers.16 Interestingly, the national healthcare movement was supported by the American Medical Association (AMA) at that time.17 Indeed, a committee of the AMA reasoned that physicians' "blind opposition, indignant repudiation, bitter denunciation of these laws is less than useless; it leads nowhere and it leaves the profession in a position of helplessness as the rising tide of social development sweeps over it."18 By 1920, the effort to enact government-sponsored coverage had stalled, in part because more conservative elements at the AMA led to a reversal of the association's support for government-sponsored healthcare coverage.19 Opposition also came from the insurance industry, the pharmaceutical industry, employers, and labor unions. …