When asked to write a chapter on how litigation has advanced a right to health in the U.S., I responded skeptically, both because evidence of the existence of any such right is weak and the role of litigation in promoting its development is small at best. A snapshot of the U.S. health care system evinces the absence of even a more narrow right to health care – a guarantee of equitable access to basic medical care. Instead, it reveals a fragmented picture of public and private financing that leaves many people lacking meaningful access to care. More so, the places where hints of a right to health care appear in the U.S. are largely not the result of litigation, but rather a product of incremental legislative efforts to advance health care access, suggesting the more compelling picture might be one of legislation.
Reflecting on the historical development of the U.S. health care financing system, the limited success of health care rights litigation, and the success of past legislative efforts, this chapter reveals two primary insights. First, it illustrates how and why the U.S. lies in vivid contrast to many other countries in this volume, where battles over health rights – defined narrowly or broadly – occur largely in the courts. Americans have been and will likely continue to be relatively more reliant on statutory advancement of health care rights. Second, it argues that, going forward, PPACA offers transformative potential for an American right to health care, by gradually redefining who does (and perhaps by implication should) have access to health care, regardless of ability to pay. Whether this formal legal change will shape social consciousness is still unclear. Early backlash to both the law and the Supreme Court decision raises doubts. Yet, past experience with incremental health reform in the U.S. offers some evidence that PPACA could provide the vision and foundation for an evolving American conception of a right to health care. If PPACA offers the best pathway to social change, supporters of a right to health care should be particularly invested in its success, even if they see its vision as flawed or incomplete.
Hoffman, Allison K., "A Vision of an Emerging Right to Health Care in the U.S.: Expanding Health Care Equity through Legislative Reform" (2014). Faculty Scholarship at Penn Law. 1888.