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WHAT DOES OUR CONSTITUTION “GUARANTEE”?

According to Mr. Mackey: “A careful reading of both the Declaration of Independence and the Constitution will not reveal any intrinsic right to health care, food or shelter. That’s because there isn’t any. This “right” has never existed in America.”

Neither does our Federal or State Constitutions include a right to education, to clean air and water, to national parks, to libraries, to public health departments, or to beach lifeguards. However, the Preamble to the Constitution does state that one of its goals is to “promote the general welfare,” and Article II Section 8 states “The Congress shall have Power to . . . provide for the . . . general Welfare . . .To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . .”  

So does our Constitution “guarantee” health care? We do have Medicare whose constitutionality is based on three decisions by the U.S. Supreme Court beginning in 1936 which decided the Constitutionality of the Social Security Act based on Article II Section 8’s power to provide for the general welfare states.[1] So health care per se may not be explicitly written into the Constitution; but Social Security and by extension Medicare have been ruled constitutional by our Supreme Court as an application of providing for the “general welfare.”

Mackey also writes: “Our Canadian and British employees express their benefit preferences very clearly—they want supplemental health-care dollars that they can control and spend themselves without permission from their governments. Why would they want such additional health-care benefit dollars if they already have an “intrinsic right to health care”? The answer is clear—no such right truly exists in either Canada or the U.K.—or in any other country.”

For Europeans, the European Union Constitution requires some form of guaranteed coverage to all citizens and legal residents (see below). Neither Canada, the UK, France, Germany nor many other countries that offer some form of universal non-profit health care cover everything. Some have nominal copayments, some cover all medications while hospitalized; but not outpatient medications.  So, for Mackay’s Canadian and British employees to want additional monies to cover such things as outpatient drugs and dental care does not negate the concept of health care as a right.

From European Constitution of 2004:

ARTICLE II-95

Health care

Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. 

ARTICLE III-278

Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organization and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. 

“The Universal Declaration of Human Rights was adopted by the General Assembly on 10 December 1948 by a vote of 48 in favor [including the United States]. Even though not formally legally binding, the Declaration has been adopted in or influenced most national constitutions since 1948. It also serves as the foundation for a growing number of international treaties and national laws and international, regional, national and sub-national institutions protecting and promoting human rights. The 1968 United Nations International Conference on Human Rights advised that it “constitutes an obligation for the members of the international community” to all persons.” [2]  “Article 25. (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Joel A. Harrison, PhD, MPH 

REFERENCES

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[1] Constitution, Art. I, section 8; United States v. Butler, 297 U. S. 1, 65; Steward Machine Co. v. Davis, supra.”  (see Constitutionality of Social Security Act http://www.ssa.gov/history/court.html ). 

[2] Wikipedia, “Universal Declaration of Human Rights,”  http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights