A FRESH LOOK AT THE RIGHT TO HEALTH CARE: DOCUMENTS AND LEGAL FOUNDATION

In a recent op-ed in the San Francisco Chronicle (Dec 29, 2003) Ruth Rosen concludes with the following warning:

Health care is a human right, not a privilege. If you don't believe this now, you might change your mind if and when you find yourself in need of life- saving care in a hospital emergency room. In recent protests on both coasts demonstrators have shouted for their Right to Health Care.

Of course, for years now, some social justice and health justice organizations like Physicians for a National Health Program, American Medical Students Association and the PUSH/Rainbow Network have advocated for the Right to Health Care.

At the same time most physician professional associations at both national and state levels refuse to give any support to the concept of a "Right to Health Care" even when these same organizations claim to be steadfastly for universal access to care and readily identify themselves as "advocates for the uninsured". What is so difficult though about accepting a "Right to Health Care" just as we accept the Right to Education (primary/secondary school) for all children? Why would some advocates of universal care still reject the idea of a Right to Health Care? And is there any legal basis for including such a human right, as the Right to Health Care as a civil right? Is there, indeed, a basis for arguing that health care is already a right of Americans, but one which must be still respected and implemented (occasionally U.S. laws are on the books for decades before they have been tested and upheld).

For the first time US legal documents have been assembled which bear upon, or explicitly describe the Right to Health Care (within this website). Most of these are so-called "new civil rights laws" and have been drafted and implemented through the United Nations. Together with a couple of our nation's earliest federal laws these "new laws" are excerpted and explained to show how they bear upon the "Right to Health Care". This right is indeed mentioned explicitly in several of them and the basis for international agreement on such issues established in several others. The documents contain specific mechanisms for domestic implementation by member nations, review internationally and enforcement. Indeed, enforcement policies have been enumerated to make certain that within the U.S. every state is compliant with the laws. The documents were always intended to be taken seriously and fully enforced.

While a few of the key "new laws" have not been ratified by the U.S. Senate, they have all been signed by our highest elected official. Furthermore, there is international agreement that all member nations are committed to such treaties regardless of Act of Parliament or Senate ratification. No treaty ever waited for compliance for such ratification, neither is there anything unprecedented about full enforcement and implementation of treaties which have not been ratified in the US Senate (SALT II, for example). The United States government has already agreed that such laws have to be respected and implemented throughout the nation.

The legal arguments for what these legal documents require of the US federal and the state governments are then presented, based on the many instances in which such "new laws" have already been cited, applied and executed in the United States. Yes, it has been kept a great secret - but that doesn't mean the laws don't exist.

The only barriers standing between Americans and a respect for their "Right to Health Care" is their own ignorance of existing law and the will to force recognition and implementation through the appropriate court challenges. The history of these such law, their origin, intention, enactment and consequence has been much neglected and disparaged. It is time now for some careful, thoughtful examination and that's what this new initiative at Project EINO is all about.

The legal work on the "Right to Health Care" and on the "new laws" in general has been pioneered by the Meiklejohn Civil Liberties Institute www.mcli.org and specifically supported by conversations with Ann Fagan Ginger at that institute. Conversations with other leading human rights organizations have also been of great utility. Dennis Lazof is the Executive Director of Project EINO.