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COVID-19 and the Right to Healthcare


Frameworks of Healthcare Rights

They say health is wealth, but then again, so is a nice car or an investment property. However, health is essential in a markedly different way than commercial items are, even if those items contribute to our ability to enjoy various aspects of our lives. Unlike material goods, health is an abstract, baseline good. We cannot enjoy other goods or participate in our daily activities to the same degree without it. Despite the foundational aspect of health to the enjoyment of all other goods, healthcare remains yet to be codified as a constitutional right. The idea has drawn occasional attention from lawmakers, but most documents, as in a 1983 report from the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, dismiss the idea of equitable healthcare as a constitutional right, casting it away as an excessive interpretation of governmental obligation.

Harvard bioethicist and political philosopher Norman Daniels’ concept of a right to healthcare, however, may help to codify the right to healthcare through the Constitution. Daniels’ theory is derived from a fundamental right to equality of opportunity as viewed through a Rawlsian contractarian lens. That is, it relies on philosopher John Rawls’ concept of justice as broad equity, with the only socially permissible inequities being those which benefit the least well-off in society. According to Daniels, health care is unlike other market goods in that it is a determinant of one’s access to a “normal opportunity range,” defined by the set of opportunities that one would have access to under “normal species function” and their respective talents and skills [1]. The right to equal opportunity does not, however, imply a right to equal outcome; rather, it merely imposes the necessity of ensuring that individuals are not kept away from opportunities they would otherwise enjoy were they healthy.

While Daniels’ theory accords well with the Fourteenth Amendment’s equal protection clause or Title VI of the Civil Rights Act–which prohibits discrimination on the basis of “race, color, or national origin” in programs funded by federal assistance– the power of Title VI remains highly constrained [2]. The only capacity in which the Supreme Court has recognized some semblance of a right to health care is for those under governmental control, namely prisoners. This obligation to provide access to health care, however, is not based on a positive or fundamental right to access, but rather is motivated by the Eighth and Fourteenth Amendments of the Constitution to fulfill prisoners’ substantive liberty interests and avoid cruel and unusual punishment [3]. However, the dramatic negative effects of the COVID-19 pandemic in the United States revealed the government’s failure to protect citizens’ health and gave reason to believe a right to baseline care should be established under Daniels’ concept of equal opportunity.

The COVID-19 pandemic is significant because of the federal government’s sweeping efforts to abate the spread of the virus. Stimulus checks during widespread lockdowns, provisions of free COVID-19 vaccines, and impositions of eviction moratoria by the Biden administration were among several actions undertaken to create support for citizens as the pandemic surged [4]. But any federal action, even when it is ostensibly to the broad benefit of all levels of society, must be appraised in its applicability; if the action cannot sustainably benefit those who need it most, it is a meaningless waste of political resources. Daniels’ theory of healthcare justice is therefore applicable as a guide toward ensuring effective and equitable distribution.

Looking at the Statistics

Daniels’ theory does not imply a right to equal outcome –– meaning statistics indicating demographic health outcomes may have reduced relevance in their application –– but it is indisputable that certain persons had access to the latest health solutions sooner, and outcome data provides an indicator of fatalities that represent a total deprivation of opportunity.

Emerging data demonstrates that socioeconomic and racial factors were major drivers of health outcomes for those hospitalized with COVID-19, and those living in rural areas were also at a disadvantage. As is often the case, these factors were not independent of one another and had a compounding negative effect on the likelihood of one’s treatment. A systematic review by JAMA Network Open found that “members of racial and ethnic minority groups had higher risks of COVID-19 positivity and disease severity” while “socioeconomic determinants were strongly associated with COVID-19 outcomes in racial and ethnic minority populations.” [5] Geography was another contributor to overall disparities in COVID outcomes: rural communities have seen progressive closures of their hospitals, even before the pandemic began. In fact, among all the states, Texas has lost the greatest number of rural hospitals to closures since 2005 [6]. While sparsely distributed geographically, rural hospitals are vital for the communities that are proximal to them, and the time required for an individual to reach a care center increases with each closure, as the next nearest hospital may be several hours away in a city center. The leading reasons that rural hospitals are forced to close are low patient volume, low reimbursement rates, and staff shortages [7]. As a result, closures are common and those that remain open are often unable to deliver equivalent care to their urban counterparts due to their lower funding and on-hand staff. Thus, taking into account socioeconomic, racial, and geographic differentials in health care availability and outcomes, current standards in our health care system are not justifiable, as our society’s least well-off demographics have been most affected by COVID-19.

External analysis comparing the United States to other wealthy countries only further demonstrates the shortcomings of its health care system. Academic reviews aiming to establish a causal relationship for the US healthcare system’s comparatively low performance predate the pandemic by over a decade. For example, a 2005 article by Ichiro Kawachi titled “Why the United States is Not Number One in Health” refers to the United States’ failure to attend to the ‘social determinants’ of health, such as education, economic standing, and public infrastructure [8]. That is, the United States’ unwillingness to support the lower classes through welfare prevents them from accessing even a baseline level of care that would help prevent chronic and severe illnesses, as members of this demographic lack the financial resources.

Recent data emerging from the pandemic is similarly sobering:in terms of both the damage inflicted by the pandemic on lifespan and the total loss of life, the United States finds itself far behind countries it considers its peers. Of the G7 nations, the United States saw the greatest number of mortalities due to COVID-19 [9]. A review published in Nature Human Behavior demonstrated that among 29 countries that included the United States, Chile, and most of Europe, only Bulgaria and Slovakia saw greater decreases in life expectancy than the United States [10]. Within this study, however, no other G7 country experienced as drastic a decline in life expectancy as the United States. Furthermore, the pandemic was not entirely the source of health problems in the United States, but rather amplified a broad weakness in the average health of Americans, with authors stating that “pre-pandemic differences in underlying conditions such as obesity and diabetes may also have contributed to an increased mortality burden in working-age US adults compared with their European counterparts.” [11] We should therefore consider health crises such as pandemics not as sole factors in the decline of American health, but rather catalysts which accelerate the already poor conditions of our national health.


Lessons for Future Crises

Given how drastically the COVID-19 pandemic demonstrated the lack of preparedness in the United States’ healthcare system for crises, we should consider seriously the increasing necessity of enshrining a right to some level, even if minimal, to preventative care. Establishing a baseline level of care would allow for the United States healthcare system to better respond to threats and prevent broad societal deprivation of opportunity. From a utilitarian standpoint, the market is harmed by the relegation of people to hospital beds, something that became apparent as financial worries rose during the early months of the pandemic. As well, the more people that are hospitalized, the more strain is put on the healthcare system and the lower the quality of outcomes. It is to our benefit, then, to reduce the number of those hospitalized. A simple way to do this is to make a baseline level of care accessible broadly, namely through ensuring access to preventative care such as immunization, screening, and check-ups. Allowing individuals access to preventative care drops national expenditures on health care dramatically. Figures estimate that “a 90 percent delivery rate of primary preventive services could reduce expenditures by $53.9 billion…at a cost of $52.1 billion for a net cost reduction of 1.8 billion.” [12] The funds saved from providing preventative care could be used for better health crisis preparedness, or, and perhaps preferably, improving our social infrastructure as Kawachi recommends.

Additionally, access to preventative care would improve the average health of Americans, which, as mentioned prior, has surfaced as a major source of difference in health outcomes between the United States and other G7 nations. Obesity and diabetes can likely be better combated by increasing social infrastructure supporting better diets while also allowing individuals to see doctors more readily who can advise patients on their lifestyle and dietary choices.

Building further upon Daniels’ framework, we should think more critically about not just what defines a baseline of healthcare, but also how that care is expressed geographically. Even if it were to pass that would make a baseline of care sacrosanct by way of a right to equality of opportunity, it means nothing if an individual can never make use of that right owing to their distance from meaningful treatment. It is therefore necessary to prevent the closure of rural hospitals by finding sustainable forms of aid, a change that is likely to fall in the hands of legislators. Some have suggested that improvements furthering this goal should be centered on modifying current schemes for insurance payment. The Center for Healthcare Quality and Payment Reform, a national policy center that… suggests a “Patient-Centered Payment System” that aims toward five goals:

  1. Support the fixed costs of essential services by establishing standby capacity payments based on the number of community residents,

  2. Implement fees based on the incremental cost of a given medical service,

  3. Conduct primary care payment schemes that are based on patient needs instead of total patient visits,

  4. Increase accountability for both treatment quality and patient spending, and

  5. Administer value-based cost-sharing for patients of rural hospitals [13].

Plans such as these can help to ensure that rural hospitals receive greater resources while also protecting the quality of care that patients should expect from their hospitals. Without this critical step to ensure that hospitals and primary care providers are within a reasonable distance of patients, baseline care will remain a somewhat toothless right.

Rational limits, of course, need to apply to what we define as a baseline level of care. Often a difficult dichotomy arises between medical treatments(which we consider absolutely necessary) and medical augments (which we consider voluntary or non-compulsory) when considering how insurance should cover treatments. For example, while plastic surgery might be an augment when one wishes to appear younger, we might consider it a treatment if a victim of severe disfigurement by burns wished to have plastic surgery to improve their quality of life. The same treatment is sought by either party, but the context of each changes our consideration of the operation’s necessity and therefore its deservedness in being covered. Preventative care, above all, should be prioritized in defining a baseline level of care, as it helps lawmakers to avoid the potential pitfalls of this dichotomy entirely by addressing the issue at its beginning stages, rather than after a condition has manifested to the degree of requiring treatment. And while these seemingly augmentative treatments may someday find themselves within a certain definition of baseline care as technology and medical care improve, the present issue of reducing the unnecessary loss of life in our current healthcare system should take far greater precedence than debating upon semantics.

 

[1] Am I My Parent’s Keeper pp68-73


[2] The United States Department of Justice, Title VI of the Civil Rights Act of 1964, Justice.gov (2019)


[3] Kathleen Swendiman, CRS Report for Congress Prepared for Members and Committees of Congress Health Care: Constitutional Rights and Legislative Powers, (2010), .


[4] Glenn Thrush, Michael D. Shear & Alan Rappeport, The Biden administration issues a new eviction moratorium as the virus surges. (Published 2021), The New York Times, 2022, (last visited Nov 16, 2022).


[5] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8586903/


[6] https://www.apmresearchlab.org/rural-hospital-closures


[7] https://www.aha.org/system/files/media/file/2022/09/rural-hospital-closures-threaten-access-report.pdf


[8] Kawachi


[9] https://pandem-ic.com/japan-and-us-are-worlds-apart-on-pandemic-mortality/


[10] https://www.nature.com/articles/s41562-022-01450-3#Sec9


[11] Id.


[12] https://www.ncbi.nlm.nih.gov/books/NBK53914/


[13] https://ruralhospitals.chqpr.org/Patient-Centered_Payment.html



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