Relitigating the Right to Health

Emily Whelan Parento & Lawrence Gostin have posted an abstract of their new article Relitigating the Right to Health, arguing that a replacement for the Affordable Care Act need not abandon the principle of universality.  Yes, it seems like a pipe dream, but given the fluctuating politics of this issue, it’s critical to get these arguments out into the public discourse.  Here’s the abstract:  

Abstract 

The passage of the Patient Protection and Affordable Care Act (ACA) represented a fundamental change in the nature and scope of the human right to health in the United States. The design and intent of the ACA was to establish a universal health care program, pursuant to which all U.S. citizens and lawful permanent residents would have a right to access affordable health insurance with comprehensive benefit coverage. Although short of fully inclusive in scale and scope, the ACA through its universality nonetheless represented a significant step toward fuller realization of the right to health. Moreover, the ACA moved the U.S. closer to the systems of most other developed countries, where universal health care programs have long been established. Following the 2016 elections, the likely repeal of the Affordable Care Act has resulted in public relitigation of the right to health care in the United States, presenting an opportunity for policymakers to affirm the principles of the right to health as a replacement plan is negotiated.

This paper argues that as the dialogue proceeds, the U.S. has an opportunity to learn from other countries and frame reform efforts to reflect core principles of the right to health. Arguments in favor of repealing ACA often rely on a premise that a universal coverage program is economically unsustainable, necessitating limitations on the scope and scale of coverage. But this is a false choice – other developed countries have consistently demonstrated that universal coverage of essential health services, along with superior health outcomes, can be achieved at a significantly lower per capita cost than the current U.S. system. Thus, rather than retreating from the ACA’s universality in an effort to contain costs, the U.S. should instead do as other developed nations have done and ground its health care system in the right to health, designing the system to affirm the universal right to essential health services. Health care systems that respect, protect, and fulfill the right to health compel rejection of barriers to access, including excessive cost-sharing and threshold conditions for eligibility such as mandatory job training or volunteerism. Rather, a right to health approach should lead policymakers to rebalance the existing resource allocation to prioritize population health outcomes, including measures such as a heightened focus on access to primary care, development of a robust public health infrastructure to support healthy lifestyles, an increased focus on value-based payment mechanisms that promote population health, enhanced price and quality transparency for all health services, and a reconsideration of the role of government in pharmaceutical and health services pricing. While repeal of the ACA may represent a retreat from attainment of a universal health care system in the U.S., there is nonetheless an opportunity for policymakers to use the forthcoming reform effort to reshape the system in a way that promotes the right to health and leads ultimately to improved population health.