America's Failure to Recognize the Right to Health: A Global Comparison

Tushar Parashar | March 14, 2018
Image by Joe Brusky, CC-BY 2.0 License.

The United States remains one of the only countries to not recognize the right to healthcare. As an example, 166 countries have ratified the International Covenant on Economic, Social, and Cultural Rights, which provides that the “States Parties . . . recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Additionally, the UN Committee on Economic, Social and Cultural Rights states, “health is a fundamental right indispensable for the exercise of other human rights.” As a country that regularly chastises other rogue nations’ human rights violations, America’s silence on the fundamental human right of healthcare is baffling.

American exceptionalism on the issue of healthcare sharply divides the country: some clamor for more healthcare entitlements, while others claim the government has no place in providing healthcare. One argument advanced by those opposing government sponsored healthcare is that the U.S. Constitution does not mention an individual right to health. This blog post explores this argument using examples from other parts of the world.

Many constitutions explicitly recognize the right to healthcare. In South Africa, citizens have a right to have access to healthcare services, including reproductive healthcare. In Colombia, the State is responsible for organizing, directing, and regulating the delivery of health services. Further, there are countries that recognize the right to health even though their Constitution is silent on such a right. For example, the Indian Constitution is silent on the individual right to health. Instead, the Constitution proclaims a right to life and personal liberty. Yet, the Indian government provides free health care to its citizens and the Supreme Court of India has ruled that “failure on the part of a [g]overnment hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life.” Therefore, India recognizes the “right to health” as an extension of a explicitly mentioned “right to life” in its Constitution. In a landmark ruling, the Indian Supreme Court found constitutional violations when hospitals denied admission to a sick patient due to a lack of availability of beds.

It is true that the U.S. Constitution doesn’t mention a right to health, but it also doesn’t mention the right to privacy. Yet, the Supreme Court has established rich jurisprudence built on the individual right to privacy. The Court could have taken a similar route on the issue of healthcare. For example, the lack of adequate healthcare can lead to the deprivation of life and liberty, which is a Fourteenth Amendment violation; however, constitutional jurisprudence in America has shied away from any such interpretation. Instead, Americans continue to pay for their healthcare and suffer from the consequences—more than 50% of  the bankruptcies in U.S. are a result of medical expenses.