With Republican leaders promising to quickly repeal the Affordable Care Act and only promising to enact a replacement, it's worth revisiting the question of whether healthcare is a right.
If the answer is no, then any replacement bill can be deemed acceptable as long as its architects maintain political power. But if the answer is yes, then any replacement bill must be evaluated in terms of what's included in that right.
Most proponents of universal health insurance coverage, whether through the ACA, single-payer or other means, believe access to healthcare is a right. The very first title in the law proclaims the goal of achieving “quality, affordable health care for all Americans.”
In 2013, facing mounting criticism of his signature achievement, President Barack Obama declared, “No one should go broke just because they get sick. In the United States, healthcare is not a privilege for the fortunate few, it is a right.” That has been a core belief for Democrats since President Franklin D. Roosevelt's 1945 State of the Union Address where he outlined a second Bill of Rights for the postwar era. “The right to adequate medical care and the opportunity to achieve and enjoy good health” was listed sixth among the eight enumerated rights. The list began with the right to a job and ended with the right to “a good education.”
None of FDR's economic rights can be found in the Declaration of Independence or Constitution. But securing those rights, including healthcare, has gradually become part of the nation's laws and regulations.
President Harry Truman proposed a national health insurance plan, but it went nowhere. The U.S. moved slowly in part because of opposition by organized medicine, but also because most Americans—including working-class Americans—already received hospital insurance through their employers. The assumption was that employer-based coverage would widen with time.
To fill obvious gaps, the government in 1965 created Medicare and Medicaid, which extended the right of access to senior citizens and the poor. But the absence of a universal scheme left out tens of millions of Americans in families whose employers didn't offer health insurance or where the breadwinners were between jobs.
As those categories grew, Congress and the courts moved haltingly toward expanding healthcare access rights. In 1986, President Ronald Reagan signed a law that guaranteed everybody access to emergency care at any hospital that took federal funds. The 1997 Children's Health Insurance Program eliminated the ignominy of millions of children going without healthcare coverage.
There has been a simultaneous expansion of what should be included in that right: what it takes to achieve and enjoy good health, to use FDR's formulation. For instance, the bipartisan Mental Health Parity and Addiction Equity Act of 2008 forbade health plans from imposing less generous benefits for those conditions.
The ACA gave people with prior medical conditions a guaranteed right to purchase insurance. It also required health plans to provide 10 essential benefits, including preventive medicine such as birth control, although the Supreme Court in Burwell v. Hobby Lobby struck that down for employers who claim a religious exemption.
There are still ethical outliers. Many on the libertarian right reject the idea that healthcare is a right, equating it with forced “takings” from healthcare providers. Others note healthcare is a business, like agriculture, with people having no more right to healthcare services than they do to tonight's dinner.
The resources devoted to the right to healthcare are limited. The task of a democratic society is to define those limits—not let an unregulated free market ration access to those rights through price. The early signals are that the Republican replacement bill will pursue universal coverage by offering tax credits sufficient to purchase very high-deductible plans—so-called catastrophic coverage. The good news is that rhetorically that accepts that at some level healthcare is a right.
The bad news is that in a society that needs to prevent chronic disease and lower costs through better patient management, that's like redefining the right to an education as ending at the eighth grade.