Six months ago the United States almost got universal health insurance. Advocates celebrating the passage of the federal health reform law argued that this was as good as it gets. While it was understood that the optimistically named Patient Protection and Affordable Care Act (PPACA) emerged as the result of political compromises, many applauded it as a step toward finally realizing the human right to health care in the United States. After all, the bar had been set quite low: because the United States produces poor health outcomes and shocking health disparities despite the highest health care spending in the world – driven by a for-profit health industry – the only way the country could go was forward. Or so it was hoped.

Yet six months later we awake to news of children’s coverage dropped, sick kids being charged more, skyrocketing insurance premiums, employers’ shifting costs to workers, and insurers defending paper-shuffling as essential medical expenses.

Everyone knew from the start that the reform would not be fully universal, with the Congressional Budget Office predicting 23 million people to remain uninsured, nor equitable, with access to care dependent on the payment of premiums, co-pays, and deductibles, nor accountable, with for-profit insurers setting prices and limiting access to doctors and services. Yet many had hoped that a little bit of universality would go a long way toward getting improvements for some. By the same token, the principle of “equity” was deemed just slightly too ambitious when insurance companies could simply be subsidized for selling their products to those working low-wage jobs.

As far as accountability goes, it was considered safer to keep the enemy – our beloved insurance companies – as close as possible, rather than unnecessarily antagonizing it. If the reform stuck to a market-based insurance system – so went the reasoning – access could be within reach of more people without causing disruptions to those benefiting from the status quo.

Except that some rather painful “market disruptions” are upon us now, with insurers dropping policies and raising rates in droves. But once again, advocates cling to their optimism; after all, the bulk of the reforms won’t come into effect until 2014, and once we plow through this disruptive period, all the pieces will fall into place. Or will they?

The National Economic and Social Rights Initiative (NESRI) has taken a careful look at how the PPACA will impact the communities most affected by the denial of the human right to health care. A new series of fact sheets examines the potential impact of the law on people of color, immigrants, and women. Beyond the mudslinging between defenders and disparagers of the new law, NESRI examines the promises that may become reality in 2014.

From the perspective of people of color, for example, the expansion of Medicaid to almost everyone earning under 133% of the federal poverty level appears largely positive, since people of color are almost three times more likely to be poor than Whites. At the same time, however, Medicaid is being privatized and contracted out to for-profit insurers at rapid speed, despite warnings by the Government Accountability Office about misspending billions of public dollars. How will this translate into access to actual care, delivered in communities of color?

The lack of providers, especially those that accept low Medicaid reimbursement rates, will likely be exacerbated with many newly insured people in search of doctors. In fact, there is no comprehensive strategy in place for rectifying the inequitable distribution of health resources across different communities. The law fails to systematically shift funding to reduce the concentration of health risks in communities of color. Some tepid measures aimed at increasing and diversifying the health workforce remain subject to discretionary funding. So how will the law help eliminate the direct and institutional racism that has consistently led to lower quality care for people of color? This problem, too, has received only scant attention. No positive responses will be required to remedy the persistent health disparities evidenced by data collection over the past decade. Almost no secure funding is available for the few well-meaning but woefully inadequate initiatives (such as cultural competence training) to address disparities.

Health reform looks even less appealing for immigrants. Not only does the new law continue the five year waiting period for permanent residents to become eligible for Medicaid, it even prohibits undocumented immigrants to buy private health coverage with their own money on the new insurance exchanges. This may lead to people losing the coverage they have now.

Finally, the fate of women under the new law illustrates the story of hope and disappointments that characterized so much of the health reform debate: high expectations fed by new regulations prohibiting gender rating and discrimination based on health status quickly turned into disillusionment epitomized in the struggle over access to reproductive care. Neither the insurance exchanges nor the temporary high-risk pools, set up this summer for those with so-called pre-existing conditions, will cover full reproductive care services. Beyond the divisive issue of reproductive rights, gaping loopholes remain in the popular insurance regulations, and the cost of both buying and using coverage may well remain prohibitive for many women, who still earn much less than men.

Neither people of color, immigrants, or women will find their human right to health care realized under this new law. The PPACA’s failure to meet the key human rights standards of universality, equity, and accountability has concrete repercussions for these already disadvantaged groups. It is disheartening that many reform advocates have accepted this failure and moved on to become staunch defenders of this law, instead of supporting the growing movement for health care as a human right and public good for all. But some rights-based efforts underway at the state level require urgent support:  Vermont is on the cusp of adopting a human rights-based health system, yet without support from activists across the country, this effort may yet succumb to the same political and industry pressures that marred the federal reform.

Amidst the celebrations of a ‘historical moment,’ a healthy dose of realism seems in order as we assess the new Patient Protection and Affordable Care Act and the related reconciliation measures. What is seen as a crucial victory for the Obama Administration has been won on the backs of many grassroots activists struggling for health care as a human right and a public good, including women’s and immigrants’ rights groups. The lengthy health reform process has mobilized many millions of people, some new to political activism and many others veterans of the long struggle for universal health care in the United States. This political moment presented a prime opportunity for finally ending the commercialization of one of our most fundamental needs, health care. The failure to seize this opportunity will haunt us for years to come.

What is now touted as the most far-reaching social legislation in almost half a century in fact bears no resemblance to the landmark Medicare Act of 1965, which instituted a fully public insurance system with contributions shared equitably by everyone, in solidarity with older people. Instead of expanding Medicare to everyone, this new law formally affirms and solidifies the private, market-based system in which health care is the domain of a for-profit industry propped up by substantial public subsidies.

Human rights standards do not tolerate the inequities inevitably linked to a reliance on market competition to meet human needs. Yet this legislation also contains some important improvements to health care access for poor people. The Medicaid expansion and the additional funding for community health centers are very welcome and long overdue, but could have been adopted as stand-alone measures. As such, they are indeed cause for celebration, yet most pundits seem to care precious little about these provisions of the new law, despite the fact that the Medicaid expansion will account for at least half of the newly insured population. Instead, all favorable attention is showered on the subsidized expansion of the private, for-profit health insurance industry.

Yet it is precisely this aspect of the new law — market-based health insurance reform — that entrenches the treatment of health care as a commodity by locking us into a market mechanism that sells access to health care based on a person’s ability to pay rather than their health needs. Public subsidies for pricey (and not price controlled) insurance products are intended to mitigate the inequities inherent in a for-profit system, while leaving no illusion that coverage will continue to be stratified and access to care out of reach for many. This volatile combination of at-will pricing by insurance corporations and the promise of subsidies to match prices also renders the system financially unsustainable for individuals and government alike.

In sum, the new health law fails to meet the key human rights standards of universality, equity, and accountability. Rather than guaranteeing universal health care, the law excludes many millions of people from access to coverage and care. Instead of ensuring that care is available for those who need it, the law makes access contingent on the purchase of private insurance. And rather than holding the private sector accountable for protecting the right to health, the law permits the industry’s focus on their bottom line. Health care is treated as commodity, not as a universal right and a public good shared equitably by all.

Many grassroots activists and their academic and advocacy allies, including the National Economic and Social Rights Initiative, have challenged this prevailing policy paradigm and presented solid evidence that health care financing and management through market relationships is unable to meet everyone’s health needs. In all other high-income countries, health systems are highly redistributive in economic terms, funded collectively through cross-subsidization with a common pool that includes all, not limited to residual public programs for certain groups. Yet Democrats in Congress and the White House did their best to silence these voices and insisted on a market-based approach despite their own better knowledge — the President himself admitted as much when he remarked that a single payer public insurance system would be necessary to achieve universal coverage. But this was not the route pursued by our legislators, and so a workable solution was jettisoned in favor of an ideological approach approved by the health care industry.

We can turn this moment into a historical one if we take it as a new beginning, not an end, for a human right to health care movement in the United States. Grassroots campaigns are well underway for universal health care at the state and even local level, for example in California, Vermont, and Montana. By using the human rights framework to guide us, we can build a broad-based movement that inspires solidarity for sharing the public goods required to meet our fundamental needs.

This is particularly important for human right to health care activists who have long been dismayed with market-based health care proposals that blatantly fail to satisfy basic human rights standards. There was perhaps only one policy measure the U.S. needed even less than the opening of floodgates for vast new corporate political spending, and that was a health “reform” bill funneling millions of new customers to the for-profit insurance industry and billions in subsidies into the coffers of the…wait for it…very same industry. If this bill, in its Senate and House versions, now appears threatened by the Democrats’ loss of one Massachusetts Senate seat, a new opportunity has emerged to call for simple but meaningful health reform measures based on human rights.

Many activists and advocacy organizations, including Amnesty, have consistently pointed to the fundamental flaw underlying the approach adopted by health reformers in DC, and urged them to treat health care as a human right, not a commodity. Yet the reform bills failed to meet the human rights principles of universality, equity, and accountability. Rather than guaranteeing universal health care, they excluded many millions of people from access to coverage and care. Instead of ensuring that care would be available for those who need it, the bills made access for most people contingent on their ability to purchase a private insurance plan. And rather than holding the private sector accountable for protecting the right to health, the bills perpetuated the industry’s focus on their bottom line.

The rapidly faltering popularity of this market-based approach creates a new opening for demanding simple but systemic policy changes that move the U.S. system toward treating health care as a public good shared equitably by all. A Medicare-like public health insurance program for everyone in the U.S. could guarantee progressively financed, publicly accountable, and fiscally sustainable universal coverage. Therefore, building on the success of Medicare and expanding it to more and more people below the age of 65 can be a key component of a rights-based reform strategy. It is equally important to secure and expand the health rights of poor and low-income people through guaranteed public coverage provided by Medicaid and the Children’s Health Insurance Program (CHIP). Without a progressive expansion of publicly financed and administered health care, it will remain virtually impossible to ensure that people’s health needs are prioritized over market incentives to deny access to care.

A significant expansion of Medicare and Medicaid at the federal level would be complementary to the many state-based efforts for advancing the human right to health care. Strong grassroots campaigns in states such as Vermont, California, Montana, Pennsylvania, and Minnesota have every chance of succeeding in establishing some form of universal, publicly funded health insurance system without federal action (although some help in the form of removing administrative hurdles would surely be welcomed). Activists are right not to wait until their representatives in DC show enough spine to stand up for people’s health. Yet with even more corporate political influence on the horizon, thanks to the Supreme Court, now may be a good time to hold our representatives accountable for protecting the human right to health care.

Anja Rudiger is a Guest Contributor.

Rally at the Vermont State House in Montpelier.

Communities across the country are demanding the human right to health care, while Congress is tweaking its latest version of health insurance legislation that continues to treat health care as a commodity.

This unacceptable discrepancy between public will and corporate power in Washington, DC, is being challenged by state-based campaigns for the human right to health care. Activists in states such as California and Vermont have their eyes on a prize much grander than anything Congress is willing to consider: single payer health care at state level. So it’s no coincidence that it is Vermont’s U.S. Senator Bernie Sanders (I) who seeks to change the health bill under discussion in the U.S. Senate by introducing an amendment that would make it easier for states to go it alone and implement a Medicare-for-All, publicly financed health care system in their state.

Vermont is ready for it, and activists think they could even manage without such federal assistance. Over the past few months, the Vermont Workers’ Center’s campaign has organized a series of People’s Forums across the state with the involvement of over 70 state legislators and more than 800 Vermonters. Participants affirmed the importance of establishing a universal, equitable and accountable healthcare system in Vermont. Bekah Mandell, a forum facilitator and campaign activist, summarizes their mood: “Ordinary Vermonters will continue to put pressure on their elected representatives until we win this fundamental human right. It is clear to us, now, that we can win, and we will win.”

On January 6, the first working day of the 2010 legislative session, the Vermont Workers’ Center will deliver thousands of signed postcards demanding health care as a human right. The legislative leadership announced at a recent People’s Forum that hearings on a single payer bill will begin on January 12.

In the spirit of solidarity with community activists, a committed group of musicians has taken to the microphone and recorded a benefit CD in support of realizing health care as a human right. Blues singer/guitarist Scott Ainslie pulled together nine other recording artists and produced “Care for All”, a compilation CD to support the Healthcare Is A Human Right campaign of the Vermont Workers’ Center, a social and labor justice organization in based in Burlington, Vermont. The CD includes a special appearance by Sen. Sanders, with his words set to music. Grammy Award-winning engineer Corin Nelsen and Will Ackerman’s Imaginary Road Studios donated mixing and mastering.

Scott Ainslie proves that the musicians get it:

The premise here is simple: when we agree that healthcare is a human right, public policy will move toward a healthcare delivery system that is based upon medical need rather than corporate greed. The campaign’s goal is to gain widespread agreement that healthcare is a public good, not a commodity; a component of the commonwealth, not private wealth; and a human right, not an economic privilege.

Campaigners, communities and musicians alike are confident that Vermont is firmly on the track to becoming the country’s first single payer state, and the first to recognize and protect the human right to health care.

Anja Rudiger is a Guest Contributor.

Does that mean the protesters demands have been met? Is this health care bill bringing us closer to realizing our human right to health care? Let’s recall that according to international legal standards, the human right to health requires that “health facilities, goods and services must be affordable for all. Payment for health-care services…has to be based on the principle of equity.”

The House bill aims to achieve affordability by subsidizing the purchase of an insurance policy for those earning between 150% and 400% of the federal poverty level, provided they don’t have employer-based insurance. In practice, this means someone with an income at the upper end of this scale would pay $5300 a year in premiums and up to $2000 a year in cost-sharing, amounting to around 17% of their income. At the bottom end of the scale, health care costs would be around 6-7% of a person’s income – which is still higher than a general income tax increase proposed by single payer health insurance bills.  Many immigrants would get no support at all, and anyone unable to afford such an insurance plan would be subject to a penalty payment, since everyone will be mandated to purchase insurance.  

Is this affordable? Maybe for some, but probably not for others. Is it equitable? Giving lower-income people greater subsidies seems like a reasonable starting point, yet even if those subsidies were sufficient, and even if everyone who needed them was eligible, it is not clear that this money would actually buy access to health care, as opposed to access to coverage.

Each person’s subsidy would go directly to an insurance company, which would continue to control an individual’s access to care, covering certain treatments but not others, allowing the visit to one doctor but not another, or denying claims altogether. Different groups of people would get different coverage and therefore different access to care, depending on their ability to pay. People would not get health care based solely on their health needs, but based on their income or wealth, age, and immigration status.

Let’s take the example of those without income, or extremely low incomes up to 150% of the poverty level. The House bill would expand the public Medicaid program to cover these groups, which is certainly a welcome measure. But is it enough to ensure access to care? Medicaid has comprehensive coverage benefits, often better than private insurance plans, yet it can be difficult for people to find a doctor who accepts Medicaid patients, since providers can make much more money treating privately insured patients. Once again, access to coverage doesn’t necessarily mean access to care. So why does the House bill favor a Medicaid expansion? Here’s the New York Times’ analysis: “This change saves money. It is less expensive for the federal government to cover low-income people under Medicaid than to provide them with subsidies to buy private insurance.”

So if it’s cheaper to pay the entire bill for a person’s comprehensive Medicaid benefits than to pay a percentage of another person’s more skimpy private coverage, then why don’t we all get Medicaid? Or Medicare, for that matter, which has higher reimbursement rates to doctors but remains much more cost-effective than private plans?

This is where the proposed market-based reform plan unravels: it is less affordable, less equitable, and more expensive than public health insurance programs. And Democrats know it, even Speaker Pelosi knows it. That’s why the Manager’s Amendment includes a pathetic attempt at reviewing – not capping – premiums charged by insurers in the federally regulated marketplace, the Exchange. But insurers have already threatened to increase premiums if Congress passes a version of the Democrats’ bill – because they can!  There’s nothing in the current bills to prevent them from increasing premiums at will, and taxpayer’s subsidies would have struggle to keep up with that, as growing cost concerns in Massachusetts demonstrate. So what about Pelosi’s last ditch effort to prevent insurers from putting “profits over patients”? It should come as no surprise to her that corporations are legally required to do just that: to make money for their shareholders by prioritizing profits over providing access to care. Indeed, the only way for insurers to stay in business is to avoid paying for health care whenever they can.

It is this market mandate to limit access to care that is the target of the “Patients not Profit” civil disobedience campaign, which has led to over a hundred arrests at sit-ins in front of insurance companies’ offices. The protesters find it unacceptable that reform efforts continue to treat health care as a commodity, not a right, and that this will result in, according to The LA Times, a bonanza for the insurance industry. No half-hearted regulatory mechanisms can address this. In fact, the only regulation that could trump the profit mandate and remove arbitrary restrictions to care would be public control of prices, coverage benefits and eligibility, and this would spell the end of for-profit and even not-for-profit market-based insurers as we know them.

Most reformers who are now trying to push this health reform effort over the finish line are well aware that leaving the market in control of our access to health care will not take us closer to realizing the human right to health care. In a recent interview, Drew Altman, President of the influential Kaiser Family Foundation, reflected on the United States’ obligation to guarantee everyone’s access to health care and concluded that this “is fundamentally about redistributing wealth in our country; that, ultimately, it means, as some of us who have to have more, have to pay, you know, a little bit more, so that others who have less can have health care.”

Such an equitable pooling of resources, which would enable us to establish a universal and unified health insurance program, requires a sense of social solidarity from all of us, a commitment to take care of everyone rather than jostling for the best position in an inherently unequal market that is artificially sustained by subsidies. This is what real democracy should be about.

A democratic society should protect everyone’s rights and dignity by meeting their fundamental needs. We can do this by “building institutions by people for the benefit of people” whose function it is to finance and administer education, health care, fire services, due process, etc. Such institutions cannot be for-profit corporations, which serve only private interests; rather, they must be publicly mandated to serve the common good. Public services such as schools, fire departments, and courts already strive to do this, and in all other industrialized democracies, health care too is financed and administered as a public good, just as Amnesty International USA has called for, in order to enable everyone to be as healthy as they can be.

In a healthy democracy, the protection of people’s rights should not depend on their income – the rich don’t get to vote twice, they can’t pay fire fighters to save their house but not their neighbor’s, and they can’t buy a visit to a doctor while others suffer from untreated illnesses. Or can they?

In today’s democracy, access to health care can be bought, and the proposed reform measures are not going to change that. This is in violation of basic human rights, according to which our fundamental needs must be met regardless of income and wealth.

But let’s suppose we were ready to agree on our responsibility to care about each other, the community we live in, and society as a whole. If we were ready to help meet each others’ needs and protect each other’s rights, we could express this solidarity through financing health care collectively. If we’re ready to do that, we could ask Speaker Pelosi and our representatives to drop the plan that forces us to buy an insurance product whose benefits and price we can’t control.  Instead, let’s focus in on an option that allow us to share contributions and benefits in a national health program that delivers health care not as a commodity, but as a public good.

Anja Rudiger is a Guest Contributor.

Similarly, early on in the debate the president championed the principle of universality by promising some form of health coverage – if not necessarily health care – for 46 million uninsured people, only to lower the policy goal to 30 million American citizens in his speech before Congress, excluding many immigrants and low-income people. Since then, further policy provisions that restrict access to health coverage for immigrants – documented and undocumented – and reduce affordability for lower-income people have appeared in the health care bill adopted by the Senate Finance Committee.

With people of color already up to three times more likely to be uninsured than white Americans and suffering from unequal health outcomes, it is no surprise that over the past few weeks a new coalition of groups representing people of color has launched an ad campaign for racial equality in health care reform. With this new advocacy push, prominent national organizations such as the NAACP and the National Council of La Raza (NCLR) are now framing their intervention in terms of people’s rights.

The coalition’s principles state that “health care is a basic human right, as essential as food and shelter,” thus echoing ongoing human right to health care campaigns by organizations such as Amnesty International USA and its coalition partners. A number of mainstream media outlets covered the launch of this new campaign – most notably Public Radio and WNYC’s The Takeaway, which featured a thoughtful piece aimed at “exploring whether or not affordable health care can be considered a fundamental human right.” However, while the Takeaway reporters seemed prepared to answer in the affirmative, representatives from NAACP and NCLR remained oddly silent on this issue.

That’s because as soon as principles are placed into the realm of policy, they become subjected to pressures created by the dominant political consensus. Translated into policy, the new coalition’s main demands include a so-called public option, steps to eliminate racial disparities, and “complete access and coverage for all legal residents.” The imagery used in their TV ad – people of color denied boarding a bus – emphasizes that the current health care debate should be linked to past civil rights struggles, with a focus on desegregation and formal equality.

Aligning health reform with a civil rights perspective clearly sends a powerful message, but it does come with some definitive drawbacks. Civil rights, rooted in Amendment XIV of the Constitution, do not include non-naturalized immigrants – documented or undocumented. Therefore, while a policy push that narrows health care access to “legal” residents may not conflict with a civil rights approach, it does ignore the human rights principle of universality. Presumably, such a policy is pursued on a purely pragmatic basis, reflecting the dominant tone of the debate, according to which, as stated by a prominent mainstream migration policy organization, “most agree that unauthorized immigrants should not benefit from government spending”.

Yet even on pragmatic grounds, this position is flawed. Provisions put in place to exclude undocumented immigrants from government spending programs, such as citizenship documentation procedures in Medicaid, have been identified as significant barriers to access primarily for African Americans, not immigrants. Those harmful provisions may still find their way into other aspects of health care reform as well. Whenever we pitch the rights of people of color against those of immigrants, we tend to end up with no rights for either group. No civil rights organization can afford to treat undocumented immigrants as illegitimate competitors for public monies or as potential carriers of disease. And no one can legitimately refer to health care as a human right without recognizing all human beings as rights-holders.

There is another reason why it can be problematic to foreground the language of civil rights, rather than human rights, in the health care struggle. Our basic economic and social rights, such as health care, are more explicitly addressed in the international human rights framework than in the U.S. Constitution. In the past, civil rights have been largely interpreted as equal protection of the law – or formal equality – not as substantive rights in the economic sphere. They don’t lend themselves easily to setting standards that could give a specific meaning to such formal equality. If everyone received equally little – for example if no one got on the bus or, for that matter, if no one received health care – citizens could still be formally equal.

That’s why Martin Luther King, Jr., aimed to move from civil rights to human rights, from desegregation and formal equality to economic justice and equity. In his Poor People’s Campaign, Dr. King intended to tackle health care and similar fundamental human needs as economic human rights and to seek justice beyond judicial decisions. A richer vision of justice means that as human rights advocates we can go beyond demanding equal opportunities in relation to whatever reform measures emerge from D.C. and constructively advance a more substantive policy position. Such a position would link the goal of a universal, equitable health system to a collective, accountable public financing mechanism for health care that enables everyone in society to share costs and benefits.

None of this is meant to underestimate that a focus on health disparities in the tradition of civil rights wouldn’t be a huge achievement if adopted by policymakers in charge. The disgrace of persistent racial disparities is neglected in the current debate, so much so that a couple of prominent think tanks recently tried to direct attention to this outrage by sidestepping the moral perspective and putting a monetary value on people’s health. Both the Joint Center for Political and Economic Studies and the Urban Institute released reports on how much money could have been saved in direct medial expenditures by eliminating racial disparities in health care ($229.4 billion for the years 2003-2006 according to the Joint Center). Economic or fiscal arguments are assumed to resonate more in our market-centered debate than rights-based arguments. Fortunately, this pessimism is not shared by the NAACP, which in its 880 Campaign is explicitly mourning the needless deaths of 880,000 black people over a 10 year period, due to a higher mortality rate than white people.

In fact, numerous organizations and networks have pushed for the elimination of racial disparities in health for many years, with little media resonance. Some of them have made effective use of human rights in their efforts; for example, the National Health Equity Coalition emphasized in a letter to incoming president Obama that “in order to address racial and ethnic health disparities, it is important that the right to health is implemented so that available resources are utilized in a manner that supports achievement of the highest attainable standard of health for every individual.” And back in 2007 the US Human Rights Network organized a collective report submission to the UN Committee on the Elimination of Racial Discrimination, which included a chapter on racial disparities in health care. In response, the UN committee asked the US government to address health disparities, in particular by eliminating the obstacles that limit minorities’ access to adequate health care.

Amnesty International USA has given its own commitment to help eliminate health disparities through its human rights principles and petition for health care reform. These principles recognize that a health care system must be both universal and equitable – it must include everyone and eliminate disparities – in order to meet human rights standards. Neither universality nor equity can be compromised for more convenient policy positions. Our society must organize the collective public provision of equal high quality health care for everyone – people of color and all immigrants, poor people and people in rural and inner city locations, women and men. This entails, as recognized in the NAACP’s centennial anniversary statement that an organization like the NAACP should follow Dr. King and “shift its mission from achieving civil rights to attaining human rights for all.”

Anja Rudiger is a Guest Contributor.