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.

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.

Women Wake Up Grumpier? Look Around and You’ll See Why

@RHRealityCheck

This week, Duke University published a new study, which found that women wake up grumpier than men. The study’s authors attribute the additional grumpiness to women needing more sleep than men. Me? I think there is just a lot to be grumpy about lately.

First, the wage gap between men and women grew over the past year, instead of narrowing like it is supposed to. Economic downturns usually hit those who are already suffering discrimination the hardest, so it is no surprise that, when the going gets tough, women and racial minorities are the first to get cut, the last to find jobs, or the most likely to find themselves in lower-paid and less secure positions. Still, considering the fact that female-headed households in the United States are more than twice as likely to be poor than male-headed households, maybe it should also not come as a surprise if we are sour.

Secondly, women are still being discriminated against in applications for new mortgages or refinancing, at least in Chicago (and there is no reason we should think Chicago is the worst case scenario when it comes to gender discrimination). The disparity is even greater when it comes to African American loan applicants. Given that Wells Fargo agreed to pay $175 million in 2012 to settle accusations that it discriminated against non-white mortgage applicants before the economic turndown, this news is not earth-shattering. Then again, having definite proof that your mortgage broker might turn your loan application down just because you don’t have the right genitalia can make a girl grumpy.

Third, a quantitative review of women in literary arts in 2012 shows that we are depressingly under-represented in the media, both as authors under review and as writers. Whether this under-representation is because women write about topics that are not considered “serious” enough for these periodicals, or because women themselves are seen as “light,” it is sad. And sad is just another word for grumpy.

And then there is this: a new survey showing that most women in the United States say we should have dated a guy for at least a month before he sees us without makeup. Sixty percent of the respondents said they wouldn’t take their makeup off while sleeping if spending the night with a new boyfriend.

I cannot decide which part of this survey makes me the maddest. First, there is the obvious exclusion of the three to five percent of the respondents who are dating women. Then there are the questions about the true state of equality in the United States and the stereotyped visions of women needing to wear makeup to be properly clad.

But I think what really got to me is what this survey says about the rock-bottom levels of women’s self-esteem in this country. Why would so many women believe wearing makeup is essential to the future of their relationship with a man? Why would they choose to sleep with someone they do not trust enough to see them naked?

Don’t get me wrong: I enjoy wearing lipstick as much as the next person, and I absolutely understand the power of putting on a mask. But that is precisely the point. Makeup is a mask. That so many women believe they have to wear one, even in bed and with their partner, is a measure of just how mad we should be.

So for Duke University to say that women wake up grumpy because we need more sleep is a bit like the typical comment about pre-menstrual syndrome. Sure, on certain days we may need more sleep or be hormonally disposed to flare up. But this does not mean there isn’t plenty to be mad about.

How Do You Prove That Discrimination No Longer Exists?

@RHRealityCheck

This week, the U.S. House of Representatives finally passed the Violence Against Women Act (VAWA), which reauthorizes funding for the fight against domestic violence in the United States. The bill passed after a prolonged partisan fight over specific protections for Native-American women and lesbian, bisexual, and trans women. Also this week, the conservative justices on the U.S. Supreme Court questioned the need for the promotion of equal voting rights, and, in particular, the continued need for oversight of equal rights in states that historically have discriminated against African Americans.

Each story elicited a pundit storm of outrage over the partisan divide on discrimination on the basis of sex, race, or sexual orientation. Many politicians and justices quoted in the press perpetuated the notion that liberals care about discrimination while conservatives do not.

But that would be an oversimplification.

At the heart of the discussion about the need for both VAWA and the Voting Rights Act is a fundamental disagreement about what governments should do about discrimination, and, even more so, what they shouldn’t do.

That difference of opinion is what led Justice Antonin Scalia to refer to the Voting Rights Act—a law that was conceived of as a tool to overcome racial entitlement among whites—as perpetuating a sense of racial entitlement among non-whites. By portraying people of color as receiving, or rather demanding, special treatment, Scalia converted the legal protection of equal rights into a situation of enforced discrimination.

It is also why some Republicans cited “inclusiveness” as the reason they supported explicit benefits for generally underserved populations in VAWA, while other Republicans claimed to vote against these benefits for the very same reason. While the former acknowledge that some women need to be explicitly named in order to be visible to policymakers and service providers, the latter promote the notion that by treating everyone the same, we will somehow magically be equal.

Simply put, the difference is not so much whether someone cares about discrimination but rather if they choose to see the full range of its reach. With some notable exceptions, most people across the political spectrum recognize flagrant forms of racism, sexism, and homophobia. The real divide is on how much we believe can and should be done to overcome historical disadvantage and internalized prejudice. Should the government allow quotas in universities to promote race and gender equality? Should states actively promote a diverse workforce?

International human rights standards are clear that affirmative action can only be legitimate while it serves a purpose; when a situation of historical disadvantage has been overcome—that is, when those who were meant to benefit from affirmative action genuinely are equal—the special measures must go.

The question, of course, is how to determine the exact moment when everyone truly has equal opportunities. This is a question that necessarily will have different answers for different people. Recent studies suggest that discrimination is still a reality for many of the subgroups that benefit the most from both the new incarnation of VAWA and the Voting Rights Act: Blacks, Latinos, working women, and Native Americans. Still, the American public just reelected a Black president, and the minority leader of the House of Representatives is a woman. In other words, systemic inequalities persist even though some people manage to escape their consequences. In this situation, perhaps the best test of whether temporary special measures are still warranted is conversational. When we stop talking about how strange it is that President Obama and Representative Pelosi got to where they are, there will be equal opportunity for all.

Of course, the courts cannot use conversation as a legal test to determine when to mandate an end to temporary special measures. Conversation can, however, be a rule of thumb for the rest of us until such time where it is no longer remarkable to find African Americans or women in positions of power.

In the meantime, the onus should be on the government, including members of Congress and justices of the Supreme Court, to prove when affirmative action has run its course, both when it comes to the prevention of domestic violence and voting rights.

Passing the DREAM Act Would Acknowledge the Human Rights of Migrant Children and Benefit All of Us

@RHRealityCheck

November 6th was a good day for human rights, at least in Maryland. Not only did the state’s voters support same-sex marriage, they also voted in favor of expanding access to higher education for all of Maryland’s students, regardless of their immigration status.

While the Maryland ballot initiative on education is great for young migrants in that state, it highlights the fact that federal action is sorely needed to protect the human rights and dignity of migrants everywhere.

There is some good news. In June this year, President Obama signed an executive order preventing the Department of Homeland Security from deporting undocumented immigrants under 30 who came to the United States before they were 16 years old, and who fulfill a number of other criteria regarding their moral standing and education.

However, while this change rightly was hailed as a positive development for hundreds of thousands of young people, it does not overcome the need for legislative action—President Obama himself called it a “stop-gap” measure. In fact, it is now more than decade since a bipartisan initiative proposing similar benefits first was introduced in the Senate under the title “Development Relief and Education for Alien Minors (DREAM) Act.”

The idea behind the original bill—and the various versions of it introduced over the years—was to open the possibility for higher education and ultimately citizenship for noncitizen children of good moral character, regardless of their immigration status.

And the idea is solid. The individuals potentially covered by these bills are already a positive part of their communities, and many know no other home than the United States. They are, for all intents and purposes, Americans in everything but paperwork. Moreover, maintaining the documentary limbo many of them are in does nothing but make it more difficult for them to pay tax, improve their education, or otherwise contribute constructively to society. In other words: refusing to regularize the status of undocumented children risks turning them into the pariahs they never were.

However, since the first DREAM Act was introduced in 2001, and despite the passage of a version of the bill in the House of Representatives in 2010, no final legislation has been approved by both houses. Arguments that the bill would foster illegal immigration or potentially shield gang members do not bear out in reality. For starters, the bill explicitly seeks to exclude those with a criminal background and applies equally to documented and undocumented aliens. Also, from a pragmatic perspective, most people migrate because they can’t provide for their families at home, not because they think they can “pull one over” on their host country. The lack of DREAM Act-like legislation does not make foreign-born children magically disappear or "self-deport." Rather, it prevents them from fulfilling their potential as participants in society, thus becoming more of a burden than they otherwise would have been: a lose-lose situation if ever there was one.

But even more importantly, education is a human right. Numerous international human rights bodies have repeatedly clarified that states must protect the human rights of those living in their territory, regardless of their legal status. Certainly, states can and must independently determine their immigration and access policies, but they cannot decide whether any one individual has rights: we all do.

Up until this week, 11 states had already adopted their own versions of the DREAM Act, including California, Texas, and New York, all states with large and rapidly growing foreign-born populations. It is telling that states with large immigrant populations know that providing immigrant children with access to higher education only can be beneficial to everyone.

The ballot initiative approved in Maryland this week sends a powerful message to Congress that states are willing to provide, piecemeal, what the federal government should be providing, wholesale. It also underlines the uneven nature of legal protections for immigrants until federal law is passed, especially because immigration generally remains under federal purview. Hopefully, passing a federal DREAM Act is a priority item on the agenda of the new Congress.