Healthcare is a human right - but not in the United States

(Published in Harvard Public Health)

Abortion rights are just the latest casualty of the United State’s failure to ensure universal and equitable access to healthcare.

The Supreme Court’s ruling on Dobbs v. Jackson in June is just the latest blow to health rights in the United States. National medical associations in the U.S. agree that abortion is essential to reproductive healthcare. So why would abortion not be protected as such? Because the U.S. does not, and never has, protected a right to health.  

Good health is the foundation of a person’s life and liberty. Injury and disease are always disruptive, and sometimes crippling. We might have to stop working, cancel plans, quarantine, hire help, and in cases of long-term disability, build whole new support systems to accommodate a new normal.

The U.S. remains the only high-income nation in the world without universal access to healthcare. However, the U.S. has signed and ratified one of the most widely adopted international treaties that includes the duty to protect the right to life. Under international law, the right to life simply means that humans have a right to live, and that nobody can try to kill another. Healthcare, the United Nations says, is an essential part of that duty. In 2018, the U.N. Committee on Civil and Political Rights said the right to life cannot exist without equal access to affordable healthcare services (including in prisons), mental health services, and notably, access to abortion. The U.N. committee mentioned health more than a dozen times in its statement on the right to life.

The bottom line is: the U.S. can’t claim to protect life if it fails to protect health. And it has consistently failed on all three of the U.N.’s measures— the latest being access to abortion.

In the U.S., our debates around healthcare, and especially abortion, are hampered by a lack of right to health. Instead, the Supreme Court in 1973 protected access to abortion through the rights to privacy and due process, not health. Privacy is mentioned only twice by the U.N. committee commentary on the right to life.

Since Dobbs, several state legislatures have declared it fair game to criminalize abortion procedures even in cases where pregnancy threatens maternal health or life. Despite ample evidence that restrictive abortion laws lead to spikes in maternal mortality and morbidity—core public health indicators—the Court prior to the Dobb’s decision has defended abortion as merely a matter of privacy, not health or life. We know this is a myth. Abortion is deeply tied to the ability to stay healthy and in some cases, alive.

Regardless, our political parties remain deeply polarized on access to healthcare, including abortion. But lawmakers should know there is historical backing in the U.S. for elevating a right to health. None other than U.S. president Franklin D. Roosevelt, first proposed healthcare as a human right in his State of the Union address in 1944, as part of his ‘Second Bill of Rights.’ His list featured aspirational economic and social guarantees to the American people, like the right to a decent home and, of course, the right to adequate medical care.

Eleanor Roosevelt later took the Second Bill of Rights to the U.N., where it contributed to the right to health being included in the Universal Declaration of Human Rights in 1948. The right to health is now accepted international law, and is part of numerous treaties, none of which the U.S. Senate has seen fit to ratify. The U.S. conservative movement has historically declared itself averse to adopting rights that might expand government function and responsibility. In contrast, state legislatures in red states are keen to expand government responsibility when it comes to abortion. The conservative movement condemns government interference in the delivery of healthcare—except when it comes to reproductive health. The American Medical Association has called abortion bans a “direct attack” on medicine, and a “brazen violation of patients’ rights to evidence-based reproductive health services.”

Excepting access to abortion, U.S. lawmakers have largely left healthcare to the markets, rather than government. True, the government funds programs like Medicaid and Medicare but these programs vary significantly in quality and access by state, falling far short of providing fair, equitable, universal access to good healthcare.

The only two places where the U.S. government accepts some responsibility for the provision of healthcare are 1) in prisons and mental health facilities; and 2) in the military. While healthcare services in the U.S. prison system are notoriously deficient, they nevertheless exist and are recognized as an entitlement, underpinning the right to life. As an example, in 2005 a federal court seized control of the failing healthcare system in California’s Department of Corrections citing preventable deaths. In the military, free healthcare is an entitlement, and the quality of that care is deemed good enough even for the U.S. president.

So why doesn’t everyone in the U.S. have the same rights?

It is an uphill battle in a country that sees health and healthcare as a private matter for markets and individuals to navigate. But if we want to improve public health in the U.S. we need to start legislating healthcare as a right—and recognize that achieving the highest possible standards of public health is a legitimate government function.

Pregnancy, Drug Use, and Why Prison Is Not the Solution

@HuffPost

In New Hampshire, a bill to redefine opioid use or addiction in “custodial parents,” including pregnant women, as child abuse is making its way through the legislature, despite vocal objection from the state’s medical community. Much media treatment of this bill and similar bills in other states presumes women are not generally held criminally responsible for terminating—or losing—a pregnancy.

This illusion is increasingly hard to sustain.

In March 2015, Purvi Patel, a 33-year-old woman in Indiana, was sentenced to 20 years imprisonment for, prosecutors claim, inducing an abortion. Patel has maintained she had a miscarriage, and has never tested positive for any of the abortifacients the prosecution claims she took. In fact, the pathologist for the prosecution partially relied on the long discredited “lung test“ to determine if the recovered fetus had been born alive: a practice from the 17th century disproven as bad science over a century ago. Whether a miscarriage or an induced abortion, it is clear that Patel is in jail for not carrying a pregnancy to term.

Indeed, state legislators increasingly seek to hold women criminally responsible for not having healthy pregnancy outcomes. Since the beginning of this year, at least eight state legislatures have introduced bills to redefine legal personhood as starting at “fertilization” or “conception.” Though voters have generally rejected personhood measures when put to a vote—three times in Colorado alone—they keep resurfacing in new versions.

From a medical perspective, fetal personhood bills make no sense. “Conception“ is not a medical term and is interchangeably used to refer to the moment an ovum is fertilized and the moment a fertilized ovum implants in the uterine lining. “Fertilization“ is a medical term—referring to fusion of male and female gametes to form a zygote—but not all fertilized ova implant in the uterine lining (that is: not all result in a pregnancy), and the precise moment of both fertilization and implantation is hard to determine. As a result, the length of a pregnancy is usually calculated with reference to the pregnant woman’s last period—when she clearly was not pregnant yet—because that moment is an observable factor that can be defined.

There are also obvious logistical problems with fetal personhood bills. An estimated 10 to 20 percent of known pregnancies end in miscarriages, with the actual number likely much higher as many women miscarry before they know they are pregnant. In addition, the risk of miscarriage is higher for specific groups of women, such as older women, women with weight problems, women who have already miscarried, those who have contracted infections or who have immune response issues, and those who regularly use drugs, including alcohol and nicotine.

As a result, the implementation of fetal personhood laws would require unconstitutional discrimination and invasion of privacy. If a fertilized ovum has the same rights as a person after birth, each miscarriage (or failure to implant) would need to be scrutinized for intentional or reckless neglect. Detection would only be possible by registering all incidents of unprotected sex, and effective surveillance would require regular pregnancy testing, in particular of women at risk of miscarriage (think mandatory weekly pregnancy testing for women over 40 until they reach menopause). Of course, no one is advocating this.

Proponents of punitive pregnancy-related provisions have, however, successfully advocated for the growing surveillance of pregnant women from marginalized or stigmatized communities through social services, and in particular through medical providers. The organization National Advocates for Pregnant Women has documented the growing arsenal of state laws that treat drug use and addiction in pregnant women as a form of child abuse. Because health care providers in all states must report child abuse to the authorities, this reframing forces doctors and nurses to breach patient confidentiality for pregnant women who admit to struggling with drug use or addiction. The predictable result is a breakdown in the therapeutic relationship at best, and at worst, a reluctance to seek care at all for the women who arguably need it the most.

Many of these bills are pushed through without consulting the medical community, which is the case for the bill currently pending in New Hampshire. House hearings are under way, and both pediatricians and obstetric-gynecologists will testify to its predictably disastrous effects on the provision of addiction treatment and child welfare.

To be sure, both child abuse and drug addiction are serious matters, which require appropriate state support. Attempts to redefine drug use or addiction as child abuse in pregnant women, however, disregard the medical and psychological needs of both abused children and pregnant women. Advocates of such legislation are attempting to transform the fiction of fetal personhood into law by appropriating the problem of child abuse and punishing pregnant women in need of treatment for substance dependency or addiction.

A fetus is not a child and a women’s right to choose an elective abortion should not be circumvented by legislating punishment for women in need of treatment for substance use disorders. Legislators should listen to the medical community. Whether the conversation is about elective abortion, treatment for substance use disorder, or any other medical intervention, decisions about care are best made by the patient in private consultation with her doctor.

On Stigma and How to Make Safe Abortion Services Scarce in the U.S.

@SheRights

This week, Indiana saw several developments that could help or hurt women’s ability to access the medical care they need when they need it, especially if what they need is an abortion.

On Tuesday, a federal court fixed a time for its evaluation of the constitutionality of Indiana Senate Bill 371 (SB371). And on Wednesday, another bill—Indiana Senate Bill 292 (SB292) was debated in the Senate health committee.

SB371 seeks to limit access to abortion by stigmatizing comprehensive reproductive health clinics as “abortion clinics,” while SB292 seeks to limit access to abortion by stigmatizing medical providers as “abortion doctors.”

At heart of both SB 371 and SB 292 is the notion that clinics and medical providers who provide abortions somehow are different and therefore merit calling out.

Yet, as the very public schism between Susan B. Komen and Planned Parenthood in 2012 made clear, abortion is just one of the health services a comprehensive clinic provides. In the case of Planned Parenthood, only 3 percent of the services provided nationwide are abortions. So if one were to name Planned Parenthood clinics after the services most frequently provided, it might be the “HIV and Cancer Prevention Clinics” or, appropriately, the “Planned Pregnancy Clinics.”

Likewise, defining a doctor or midwife who is willing to perform abortions (surgical or not) as an "abortion doctor" or "abortionist" is equivalent to describing your most well-stocked local grocer as the “Gluten Free Bread Dealer.” Sure, it may be near impossible to obtain gluten-free bread in your neighborhood, and for most it won’t matter. But if you have celeriac disease, it is significant that someone is willing to take valuable shelf-space up with the one kind of bread you can eat without getting a stomach-ache.

But of course the point of Indiana’s bills is not to accurately describe what goes on in reproductive health clinics, or to dignify medical providers with descriptors that go to what they actually do. The point is to stigmatize abortions as bad, and the clinics and doctors who provide them as worse. The corollary of this thinking is that such “bad” clinics and people must be subject to more stringent government oversight. The ultimate objective is to make it very hard for anyone to provide or obtain a legal and safe abortion.

And it works. When Texas imposed more stringent rules on “abortion clinics” in 2013, at least a dozen clinics closed down. New restrictions allegedly proposed in Louisiana could take away any possibility for obtaining a legal and safe abortion in that state.  This week, Mikki Kendall recounted how Illinois laws allowing for the separation of service providers into those who do and those who don’t provide abortions almost cost her her life.

No one, however, should be under the misapprehension that making abortion less accessible will make it less prevalent. In countries where abortion is illegal, for example, women and girls who need to terminate their pregnancies still find ways to do so—usually unsafely. Researchers from the World Health Organization have called unsafe abortion “a preventable pandemic,” and estimates suggest that approximately 68,000 women per year die from complications caused by unsafe abortions. Yet abortion, when provided early in the pregnancy, is one of the safest medical procedures around, with less than 0.05 percent risk of complications needing hospital care.

In other words, it is not that abortion is an unsafe medical procedure. It is that laws limiting access to abortion—such as the laws debated in Indiana this week—make it unsafe. Instead of stigmatizing doctors who will provide abortions, we should stigmatize those who won’t.

Why Is El Salvador Letting A Woman Die?

@RHRealityCheck

This past month, the world has been watching a 22-year-old pregnant woman in El Salvador die, little by little. I want to say it is like watching an accident happen in slow motion, but this situation is no accident. El Salvador’s government is deliberately denying lifesaving treatment to the woman, for no reason other than that she is pregnant.

At first I couldn’t understand why.

I am not trying to be naive. I know that abortion is criminalized in all circumstances in El Salvador, and that the government therefore can hide behind the law to justify denying Beatriz (a pseudonym) medical treatment. I also know that El Salvador is a predominantly Catholic country, and that church officials are very active in the country’s political life, in particular on this issue.

But this same constellation of facts has not prevented select women in similar situations from getting access to the services they need in other countries in the region. Over the years, I have interviewed a small handful of women in Latin America who needed abortions to protect their health and lives. In most cases, after an initial negotiation with the public health ministry or prosecutor, the intervention went through on the dual condition that it got registered as “appendicitis” in the woman’s medical record, and that the women didn’t tell anyone about it. It didn’t much matter if abortion was legal or illegal in the countries where each case happened—the main motivation for allowing the intervention for the prosecutors and other public officials involved was to avoid negative publicity.

Because it doesn’t look good for El Salvador’s government officials. Sure, they are following the law. But they are also watching a woman die. And for what? The fetus Beatriz is carrying does not have a forebrain, and is likely to survive only scant hours after birth, if that. Human rights officials from the United Nations have publicly called out the situation as counter to El Salvador’s international obligations, and international media are portraying the government as “not moving a finger.”

The only reasonable explanation for the public stand-off is that Beatriz and other resource-poor women are politically expendable, and that crossing the Catholic Church is seen as worse than being hung out in the press as inhumane.

It wouldn’t be the first time poor women pay with their health and lives for politics. In Nicaragua, a mere ten days before the 2006 presidential election, the parliament voted to eliminate the possibility for legal abortion when a woman’s life is threatened by her pregnancy. Members of the Sandinista party were reportedly told to vote for the change, with the promise that it would be “fixed” after their candidate had won the election. And during the Pope’s 2007 visit to Brazil, then-President Lula publicly announced his opposition to abortion.

Let us be clear: the Catholic Church, and any other religious group or civil society organization, has the right to try and influence policies and further its agenda within the limits of the law. But governments owe everyone the same rights, regardless of faith, sex, family status, or ability to pay for votes or medical treatment. In the recent ruling, the Inter-American Court on Human Rights stated that governments cannot implement laws in a manner that reflects only one particular religion, as this would infringe on the rights of those who do not share that faith.

Nowhere is this more obvious than when it comes to the laws that criminalize abortion, even where the pregnant woman’s health or life is compromised. Not all visions of Catholicism require a woman to die for the sake of her pregnancy. And even if they did, it is Beatriz’s faith, wishes, and life the law must uphold.

I don’t understand what El Salvador’s government has to gain from watching this young woman die a preventable death. And I don’t understand how we can continue to allow this to happen.

When Health Care Providers Refuse Care, Whose Rights Are At Stake?

@RHRealityCheck

Recently, an appeals court in Scotland ruled that a wide range of service providers have a right to object to helping with the provision of abortions, even if the care they provide is not directly related to the termination of a pregnancy. In the original ruling, last year, the duties carried out by the two Catholic midwives who brought the case had been considered so removed from the actual abortion that there could be no objection. The appeals court, however, disagreed. Everyone even tangentially involved, it said, has the right to object to providing a wide range of services. The only exception would be life-saving care.

This ruling highlights issues that have relevance beyond Scotland.

The tragic death of Savita Halapannavar in Ireland last year crystallized that no one really knows for sure when a woman is dying from pregnancy-related complications. Over the years, I have interviewed dozens of medical providers in countries with restrictive abortion laws. A key concern for the vast majority of them was how to make sure their actions were legal. Those working in countries where only life-saving abortions are permitted often expressed fear that they would either turn too many women away, with fatal consequences, or ultimately lose their license for providing care to someone who wasn’t “dying enough.”

Let’s apply this notion in a context where anyone involved, however tangentially, in the provision of abortion services, can refuse to treat a woman who is not dying.

This situation raises questions which, regardless of the answers given, compromise quality care. Who gets to determine how lethal each pregnancy is? Can a treating doctor compel assisting midwives or nurses to intervene if she or he believes the patient otherwise will die? And would midwives and others have the right to sue if they had been compelled to help provide an abortion to a woman who ultimately survived? There are no good answers to these questions, and any regulatory solution would almost inevitably lead to substantial delays in care.

Another key concern with a broadly defined right to conscientious objection in the context of health care is access to care in remote—or sometimes not so remote—areas. In the United States, much anti-choice activism is directed at making abortion impossible rather than illegal. Legislators, judges, and other officials in states including Mississippi, Virginia, and North Carolina have made it their goal to run every last abortion provider out of their state. Already, 35 percent of the U.S. population lives in counties without an abortion provider.

Moreover, broad conscientious objection clauses in combination with the stigmatization of abortion generally can stifle the provision of care anywhere. In small communities where everybody knows each other and where abortion is thought of as “evil,” doctors, nurses, and midwives often object to providing care out of fear rather than faith. After all, they still have to make their living where they are.

When I researched access to abortion for rape victims in Mexico, I came across various innovative “solutions” to this problem. In one area, abortion teams were circulated between public hospitals to ensure that no one had to provide care in his or her home town. In another, abortions were provided with the knowledge only of the senior-most officials at selected hospitals, with the result that many women in need of urgent care were turned away because “we don’t do that here” (even at hospitals where they, in fact, did).

Neither of these approaches solved the underlying problem: that abortions are seen as separate from other medical care (which they are not), and that abortion providers are considered different from other medical providers (again, not true). As a result, patients had to seek legal care in a clandestine manner, and in many cases the additional option of conscientious objection for anesthesiologists or nurses—who were not part of the core teams—made abortions virtually impossible to obtain.

Everyone has the right to freedom of thought, religion, and conscience. But international human rights standards do not protect our right to express those thoughts or that conscience in a manner that infringes on other people’s human rights. The more I learn about the concrete repercussions of conscientious objection in the context of health care, the more it is clear to me that there is no room for it. Ultimately, if you don’t want to provide the obstetric or gynecological services your patient needs—which may include an abortion—maybe you should choose another field of specialty.