Holding the U.S. Accountable: How American Health Care Fails to Meet International Human Rights Standards
Holding the U.S. Accountable: How American Health Care Fails to Meet International Human Rights Standards
Jeanne Connolly Carmalt 0
0 University of Washington , USA
* Ph.D. Candidate, Department of Geography, University of Washington. B.A.,
Vassar College; J.D., Cornell University. I would like to thank the New York City Law
Review for requesting my contribution to this issue. This piece draws on previous
work with Sarah Zaidi and Alicia Ely Yamin. See Jean Connolly Carmalt, Sarah Zaidi,
& Alicia Ely Yamin, Entrenched Inequity: Health Care in the United States of America in The
Right to Health in Comparative Perspective (Stephen P. Marks, ed.) (forthcoming).
Many thanks go to Alicia Ely Yamin for her comments regarding the ICESCR
signature obligation. Special thanks are also due to Maxwell Carmalt for his patience, and
to Daniel Connolly Carmalt, without whose support and substantive feedback this
article could not have been completed.
1 In 2006, there were approximately forty-seven million Americans without health
insurance. This figure does not include people covered by government health
insurance programs such as Medicare, Medicaid, and the State Children’s Health
Insurance Program. CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR & JESSICA SMITH,
U.S. CENSUS BUREAU, Income, Poverty, and Health Insurance Coverage in the United
States: 2006, at 21 tbl.6 (2007), available at http://www.census.gov/prod/2007pubs/
p60-233.pdf [hereinafter CENSUS BUREAU].
2 Nearly 16 million people were estimated to be underinsured in 2003. Cathy
Schoen et al., Insured but Not Protected: How Many Adults are Underinsured?, HEALTH
AFFAIRS (WEB EXCLUSIVE) W5 289, W5 289 (2005) available at http://content.health
3 See WORLD HEALTH ORG., THE WORLD HEALTH REPORT 2000, at 148 (2000),
available at http://www.who.int/whr/2000/en/whr00_en.pdf [hereinafter WORLD
HEALTH REPORT 2000] (“Fairness of financial contribution starts with the concept of a
household’s contribution to the financing of the health system. The health financing
In 2005, the United States spent approximately $2 trillion on
health care, which amounted to 16% of the country’s total
economic activity (GDP).4 Costs are projected to reach $2.77 trillion
by the year 2010.5 The astronomic expenses associated with
providing health care in this country are directly related to the fact
that many people do not have available, accessible, acceptable, or
quality care. In 2006, one in four Americans reported that their
family had difficulty paying for care.6 In that year too, more than a
quarter of all Americans—twenty-eight percent—said that they or a
family member delayed care because of costs.7 The problem of
high costs is more complex than who does or does not carry an
insurance policy: nearly seventy percent of the people who have
difficulty paying for care or receive delayed care due to cost hold
insurance policies.8 Nonetheless, those without health insurance
are even more likely to face barriers to care because of cost, with
nearly sixty percent struggling to pay for care and sixty-eight
percent receiving delayed care.9 In addition, most people who do not
have health insurance—fifty-four percent—are uninsured because
they cannot afford to purchase a policy.10 This is not surprising
given how expensive health insurance is in the United States; in
2007, the average annual premium for a health plan covering a
family of four was over $12,000, and the cost of insurance
continues to rise.11
The costs associated with health care in the United States tell
only part of the story. Focusing on the problem of high cost leaves
out questions about why some racial groups are so
disproportionately affected by the uneven access and quality of health care that is
contribution of a household is defined as the ratio of total household spending on
health to its permanent income above subsistence.”).
4 THE HENRY J. KAISER FAMILY FOUND., HEALTH CARE COSTS: A PRIMER 2 (2007),
available at http://www.kff.org/insurance/upload/7670.pdf.
5 PLUNKETT RESEARCH, LTD., HEALTH CARE TRENDS (2006), http://www.plunkett
(last visited Apr. 23, 2008).
6 ABC NEWS, KAISER FAMILY FOUND. & USA TODAY, HEALTH CARE IN AMERICA 2006
SURVEY, at chart 3 (2006), http://www.kff.org/kaiserpolls/upload/7572.pdf (last
visited Apr. 23, 2008) [hereinafter ABC/KFF/USA Survey].
7 Id. at chart 6.
8 Id. at chart 3.
9 ABC/KFF/USA Survey, supra note 6.
10 Id. at chart 11.
11 KAISER FAMILY FOUNDATION, HEALTH RESEARCH AND EDUCATIONAL TRUST &
NATIONAL OPINION RESEARCH CENTER, EMPLOYEE HEALTH BENEFITS: 2007 ANNUAL SURVEY
18 (2007). The cost of insurance has risen 78% since 2001, with a 6.1% increase in
2007 alone. This increase cannot be explained by the rate of inflation (2.1% in
2007), nor can it be covered by the increase in workers earnings (3.7% in 2007). Id.
available in this country. It also sidelines discussions about what
happens when the goal of making people healthy works at
crosspurposes to the goal of maintaining profitability. These issues
highlight the deeper structural flaws associated with contemporary
U.S. health care. Despite a complex array of laws and regulations
related to health and health care, the United States consistently
fails to address these deeper problems, focusing on the outcomes
of structural flaws rather than on the flaws themselves. As a result,
the U.S. “system” fails to provide the best possible health care for
all. It also violates international standards regarding the provision
of health and health care.
This Article explores three long-standing issues facing U.S.
health care and recasts these issues as violations of international
human rights law: (1) the U.S. healthcare system operates under de
facto discrimination based on race and income—discrimination
which constitutes a violation of the obligation to respect the right
to health, even when it does not violate domestic definitions of
discrimination; (2) certain structural components of healthcare
delivery, such as the way in which the health insurance industry
operates in the U.S., constitute third-party infringements on the
right to health; and (3) large numbers of Americans currently lack
access to available, acceptable, and quality health care, which in
and of itself represents a failure of the United States to fulfill the
human right to health.
Each of these violations represents a level of governmental
duty regarding the right to health. As with other human rights, the
human right to health—as it is defined by the International
Covenant on Economic, Social and Cultural Rights (“ICESCR”)—sets
out three levels of responsibility: the duty to respect, the duty to
protect, and the duty to fulfill.12 These tripartite duties exist for all
human rights under international law.13 The duty to respect
correlates to an obligation on behalf of the government not to violate
the right through its own actions. The duty to protect requires a
government to ensure that third parties, including private entities,
12 International Covenant on Economic, Social and Cultural Rights, opened for
signature Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]; U.N. Committee on
Economic, Social and Cultural Rights [hereinafter CESCR], General Comment 14: The Right
to the Highest Attainable Standard of Health (Article 12 of the International Covenant on
Economic, Social and Cultural Rights), 22d Sess., para. 33, U.N. Doc. E/CN.12/2000/4
(2000) [hereinafter CESCR General Comment 14].
13 Asbjørn Eide, Economic, Social and Cultural Rights as Human Rights, in ECONOMIC,
SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 9, 23 (Asbjørn Eide et al. eds., 2d rev. ed.
do not violate the right. The duty to fulfill requires governments
to take the steps necessary to ensure that the right may be fully
realized by all persons.
Part I(A) of this Article outlines the content of the right to
health as it is defined by international human rights law. Although
the focus of this piece is primarily on health care, human rights law
recognizes the impossibility of separating the requirements for a
successful healthcare system from the overall health needs of a
population. The right to health therefore includes requirements
regarding access to the underlying determinants of health, such as
housing and education.
Part I(B) discusses the ways in which the United States may be
legally obligated—under international law—to recognize and
promote the right to health. Although the U.S. has not ratified the
primary treaty that contains that right (the ICESCR), it is party to
other treaties that are relevant to health, including the
International Covenant on Civil and Political Rights (“ICCPR”)14 and the
International Convention on the Elimination of All Forms of
Racial Discrimination (“ICERD”).15 In addition, the U.S. has some
limited legal obligations associated with its signature of the
ICESCR. Beyond any legal obligation, the article also argues that
moral, historical, and political interests support a rights-based
approach to healthcare reform.
Part II, III, and IV evaluate whether the United States respects,
protects, and fulfills the right to health, finding that it currently
fails to meet international standards at each of these levels. This
Article concludes that international human rights law provides an
effective measuring tool for U.S. healthcare reform efforts because
it ensures that the primary focus of any proposal will be to promote
the highest attainable standard of health for everyone.16
I. APPLICABLE LAW PERTAINING TO THE HUMAN RIGHT TO HEALTH
International law related to the human right to health appears
in numerous treaties and declarations, beginning with the
Universal Declaration of Human Rights of 1948 (“UDHR”) and including
a variety of international and regional instruments.17 Overall, the
goal of the international right to health is to promote the highest
attainable standard of health for everyone.18 The United States has
some legal obligations to respect, protect, and fulfill the right to
health despite the fact it has only signed—not ratified—the
ICESCR. These include an obligation under the ICCPR to respect,
protect, and fulfill the right to health insofar as doing so is
necessary to prevent the arbitrary deprivation of life.19 The U.S. also has
an obligation under the ICERD to respect the right to health in
terms of prohibiting all forms of discrimination.20 Finally, the U.S.
has limited legal obligations associated with its signature of the
ICESCR.21 Regardless of any international legal obligations to
uphold the right to health, it is also in the best political interest of the
United States to evaluate its policies from a rights-based
perspective. Since viewing health as a human right carries both moral and
historical resonance, using a rights-based approach avoids deeply
entrenched and politicized arguments regarding healthcare
The right to health under international law
The legal basis for the international human right to health
appears in both the Universal Declaration of Human Rights, which
includes health as part of the broader right to an adequate
standard of living,22 and in the ICESCR, which elaborates on the right
under article 12.23 Article 12 provides:
1. The States Parties to the present Covenant recognize the right
23 ICESCR, supra note 12, art. 12.
of everyone to the enjoyment of the highest attainable standard
of physical and mental health.
2. The steps to be taken by the States Parties to the present
Covenant to achieve the full realization of this right shall include
those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of
infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and
(c) The prevention, treatment and control of epidemic,
endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all
medical service and medical attention in the event of sickness.24
The Committee on Economic, Social and Cultural Rights
(“CESCR”) has provided additional interpretation of article 12 in
its General Comment 14, which is explored in more detail below.25
Under international law, the human right to health is not the right
to be healthy. Rather, it is the right to the enjoyment of the highest
attainable standard of health.26 The focus on attainable health
instead of actual health highlights the impossibility of guaranteeing
good health in the face of genetic, habitual, and circumstantial
variation. The difference is significant, since it allows for contextual
variation depending on the characteristics of individuals and the
resources of particular locations.27
The right to health includes two tiers. The core minimum
content is non-derogable and considered attainable in all
instances. The core content is part of the more comprehensive right
to health as it is defined under international law.
Like all human rights, the human right to health is rooted in
the promotion of human dignity, and therefore should be
interpreted in such a way as to best promote dignity.28 To that end,
there are minimum core obligations for the right to health that are
25 CESCR General Comment 14, supra note 12, para. 4.
26 ICESCR, supra note 12, art. 12(1).
27 Under Article 2(1) of the ICESCR, State Parties are permitted to achieve the full
realization of the rights “progressively” and to the “maximum of its available
resources.” Id. at art. 2(1). This provision is limited in two ways: by the core
requirements (see infra note 29) and by the principle of non-retrogression, under which
State Parties may not undo achievements made towards realizing the right in
question. CESCR General Comment 14, supra note 12, paras. 47–48.
28 Chris Jochnick, Confronting the Impunity of Non-State Actors: New Fields for the
Promotion of Human Rights, 21 HUM. RTS. Q. 56, 60–61 (1999).
considered attainable in all circumstances, and therefore not
subject to the doctrine of progressive realization.29 According to the
CESCR, these core obligations include “at least” the following:
(a) To ensure the right of access to health facilities, goods and
services on a non-discriminatory basis, especially for vulnerable
or marginalized groups;
(b) To ensure access to the minimum essential food which is
nutritionally adequate and safe, to ensure freedom from hunger
(c) To ensure access to basic shelter, housing and sanitation,
and an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined
under the WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities,
goods and services;
(f) To adopt and implement a national public health strategy
and plan of action, on the basis of epidemiological evidence,
addressing the health concerns of the whole population; the
strategy and plan of action shall be devised, and periodically
reviewed, on the basis of a participatory and transparent process;
they shall include methods, such as right to health indicators
and benchmarks, by which progress can be closely monitored;
the process by which the strategy and plan of action are devised,
as well as their content, shall give particular attention to all
vulnerable or marginalized groups.30
Further, the Committee laid out “obligations of comparable
priority” to the core obligations:
(a) To ensure reproductive, maternal (pre-natal as well as
postnatal) and child health care;
(b) To provide immunization against the major infectious
diseases occurring in the community;
(c) To take measures to prevent, treat and control epidemic and
(d) To provide education and access to information concerning
the main health problems in the community, including methods
of preventing and controlling them;
(e) To provide appropriate training for health personnel,
in29 CESCR, General Comment 3: The Nature of States Parties Obligations (Art. 2, Para. 1 of
the Covenant), 5th Sess., para. 10, U.N. Doc. E/1991/23 (1990) [hereinafter CESCR
General Comment 3] (“[A] minimum core obligation to ensure the satisfaction of, at
the very least, minimum essential levels of each of the rights is incumbent upon every
State party.”); CESCR General Comment 14, supra note 12, para. 47 (“It should be
stressed . . . that a State party cannot, under any circumstances whatsoever, justify its
non-compliance with the core obligations set out in paragraph 43 above, which are
30 CESCR General Comment 14, supra note 12, para. 43.
cluding education on health and human rights.31
As with the right to health overall, these minimum obligations
include both procedural components (e.g. providing access to
information) and substantive components (e.g. providing access to
health facilities). The core content of the right to health is
nonderogable, even when a State has such limited resources that it
must implement other portions of the right to health
The United States already meets the core content of the right
to health in many ways. For example, the Centers for Disease
Control and Prevention (“CDC”) is a federally-funded agency that
promotes “health and quality of life by preventing and controlling
disease, injury, and disability.”33 Among other activities, CDC
programs provide immunizations and take measures to prevent, treat
and control diseases.34 However, other minimum obligations
remain unmet, such as the obligation to provide “access to health
facilities, goods and services on a non-discriminatory basis.”35
2. Substantive and procedural elements of the right to
The core requirements associated with the right to health
constitute only a fraction of the overall duties associated with that
right. The CESCR has elaborated on these obligations in the form
of four substantive elements which require the provision of health
care that is (1) available, (2) accessible (including physical and
economic accessibility in addition to procedural requirements
relevant to access), (3) ethically and culturally acceptable, and (4) of
good quality.36 These four elements work together to create a
comprehensive approach to health: they are interdependent and
frequently overlap in the context of particular places and
communities. Each of the elements is explained in greater detail below.
Availability focuses on the number and type of services that
exist in specific communities. Availability requires sufficient numbers
31 Id. at para. 44.
32 ICESCR, supra note 12, art. 12.
33 Centers for Disease Control and Prevention, Vision, Mission, Core Values, and
Pledge, http://www.cdc.gov/about/organization/mission.htm (last visited Mar. 25,
35 CESCR General Comment 14, supra note 12, para. 43(a). Discrimination in this
case includes intentional and non-intentional discrimination. See infra Part II(A).
36 CESCR General Comment 14, supra note 12, para. 12.
of personnel and facilities.37 It also requires that the personnel
and facilities are capable of addressing the health concerns of the
community.38 For example, if a city with high rates of heart disease
has only one cardiologist, that city has a shortage of available
medical personnel. Providing the city with additional anesthesiologists
or podiatrists will not meet the problem of availability, since those
additional anesthesiologists or podiatrists will not provide
additional cardiac services.
In the United States, availability is a particular problem in
rural areas, which frequently face shortages of medical services and of
physicians.39 However, from a rights-based perspective, it would
not be enough simply to increase the number of available services
and physicians. Instead, a rights-based approach would ask (1)
whether the geographic distribution of additional services and
physicians addresses the shortages of rural areas, and (2) whether the
additional services and physicians meet the needs of those
populations. For example, a rights-based policy might consult local
communities in defining their health needs and then provide the
appropriate incentives and services to ensure that those needs are
Availability overlaps to some extent with the requirement for
accessibility, since physical distance may be one of the reasons that
medical personnel and services are unavailable, particularly for
rural populations. Physical accessibility requires that medical goods
and services be literally accessible to the people they are meant to
serve. However, physical accessibility includes multiple geographic
37 Id. at para. 12(a) (“Functioning public health and health-care facilities, goods
and services, as well as programmes, have to be available in sufficient quantity within
the State party.”).
38 Id. at para. 12. The CESCR stresses that the elements of the right to health are
interrelated. Therefore, availability also includes ensuring that provided services are
culturally and ethically acceptable to the community and that individuals and groups
have the opportunity to participate in decision-making processes that may affect their
development. Id. at para. 12(c), 54.
39 Thomas C. Ricketts, The Changing Nature of Rural Health Care, 21 ANN. REV. PUB.
HEALTH 639, 640 (2000) (“[R]ural America has 20% of the nation’s population but
less than 11% of its physicians”); W Nelson, et al., A Proposed Rural Health Care Ethics
Agenda, 33 J. MED ETHICS 136, 137 (2007).
Fewer health care providers are available per capita for rural versus
urban populations. . . . In particular, the availability of mental health
services is limited for people living in rural communities. Most areas that
are short of health professionals are in the rural counties. Rural
healthcare facilities generally are small and often provide a limited range of
Id. (citations omitted).
scales, from the miles between hospitals to the architecture of
individual health facilities.
In the United States, the smaller scales of physical accessibility
are addressed by the Americans with Disabilities Act (“ADA”),
which requires that medical facilities meet certain building
standards to ensure that all persons are able to physically access those
facilities.40 The ADA also ensures physical access not only through
the requirements for the buildings themselves, which are extensive,
but also by providing that transportation services be “readily
accessible to and usable by” persons with disabilities.41 In this way, the
United States meets some of the physical accessibility requirements
associated with the human right to health.
The requirement for accessibility has multiple dimensions. In
addition to physical accessibility, the human right to health
requires health services to be economically accessible, or affordable.42
Affordability means more than simply ensuring that the cost of
services is as low as possible. It also includes the principle of
proportionality, so that poorer households should not be
“disproportionately burdened with health expenses as compared to
richer households.”43 This means that the absolute cost of medical
services is less important than the percentage cost for households.
For example, if a household earning $500,000 per year pays $5,000
in medical expenses, then a household earning $50,000 per year
should only pay $500 in medical expenses. It is unequal to require
wealthy and poor households to pay the same dollar amount for
In addition to physical and economic access, accessibility
requires non-discrimination and access to information.44 These two
procedural components of access underscore the overlapping
nature of procedural and substantive elements within the right to
health. Under international law, non-discrimination includes both
de facto and de jure discrimination on the basis of any of the
prohibited grounds: race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth, physical or
mental disability, health status (including HIV/AIDS), sexual
ori40 ADA Standards for Accessible Design, 28 C.F.R. pt. 36, App. A, § 6 (1994).
41 Intercity and Commuter Rail Actions Considered Discriminatory, 42 U.S.C.
§ 12162 (2003); Prohibition of Discrimination in Specified Public Transportation
Provided by Private Entities, 42 U.S.C. § 12184 (2003).
42 CESCR General Comment 14, supra note 12, para. 12(b).
entation and civil, political, social or other status.45 The
prohibition of discrimination under international law is discussed in more
detail below.46 Accessibility also includes equal access to
information about health services. The CESCR has defined the right to
information as “the right to seek, receive and impart information
and ideas concerning health issues.”47 This includes information
about reproductive health and health services, and it includes a
duty on behalf of the government to provide information in a
language that can be understood by its recipients. The right to
information can be particularly important for communities that are
traditionally underserved and for those who suffer from disparate
impacts, and it therefore overlaps with the requirement for
In addition to availability and accessibility, under international
law, health care must also be acceptable and of high quality. The
requirement for acceptability includes ethical standards, cultural
sensitivity, and a gender perspective.48 Often, acceptability can be
improved by including affected populations in the formulation and
implementation of health strategies.49 Quality requires that
medical goods and services are “scientifically and medically
appropriate,” which means that there must be “skilled medical personnel,
scientifically approved and unexpired drugs and hospital
equipment, safe and potable water, and adequate sanitation.”50 In many
respects, the United States meets and surpasses these quality
requirements. For example, medical facilities are typically sanitary,
45 Id. at para. 18.
46 See infra Part I(B)(ii).
47 CESCR General Comment 14, supra note 12, para. 12.
48 Id. (“All health facilities, goods and services must be respectful of medical ethics
and culturally appropriate, i.e. respectful of the culture of individuals, minorities,
peoples and communities, sensitive to gender and life-cycle requirements, as well as
being designed to respect confidentiality and improve the health status of those
49 Id. at para. 54.
The formulation and implementation of national health strategies and
plans of action should respect, inter alia, the principles of
non-discrimination and people’s participation. In particular, the right of individuals
and groups to participate in decision-making processes, which may
affect their development, must be an integral component of any policy,
programme or strategy developed to discharge governmental
obligations under article 12. Promoting health must involve effective
community action in setting priorities, making decisions, planning,
implementing and evaluating strategies to achieve better health.
Effective provision of health services can only be assured if people’s
participation is secured by States.
50 Id. at para. 12.
and equipped with scientifically approved, unexpired drugs, and
safe water. In addition, advances in medical knowledge and
technologies have resulted in increased quality for many.51
Nonetheless, the U.S. system continues to be plagued by its inability to
provide quality care consistently, leading to widespread concern
regarding quality shortcomings.52
Quality and acceptability are deeply intertwined. For
example, there is a direct relationship between culturally acceptable
care and quality of care, particularly for minority populations who
are less likely to have medical providers from their own culture.53
The relationship between acceptability and quality emerges in part
because of the importance of effective communication between
patients and their care providers: since effective provider-patient
communication is a necessary precursor to patient satisfaction and
adherence to prescribed treatment, failure to communicate
effectively across cultural differences will result in poorer health
outcomes.54 In the United States, there is a significant gap between
the percentage of minorities in the population as a whole and the
percentage of minorities who are physicians,55 which results in a
problem of both acceptability and quality.
The four substantive elements discussed above are
complemented by five procedural elements:
(1) Non-discrimination. Non-discrimination includes both
intentional and non-intentional discrimination, and is
discussed in more detail below.56
51 INST. OF MED., CROSSING THE QUALITY CHASM: A NEW HEALTH SYSTEM FOR THE
21ST CENTURY 2 (2001).
52 Id. at 2–3.
53 INST. OF MED., UNEQUAL TREATMENT: CONFRONTING RACIAL AND ETHNIC
DISPARITIES IN HEALTH CARE 200 (Brian D. Smedley, et. al. eds., 2003) [hereinafter UNEQUAL
TREATMENT]. (“Thus, when sociocultural differences between patient and provider
aren’t appreciated, explored, understood, or communicated in the medical
encounter, the result is patient dissatisfaction, poor adherence, poorer health outcomes, and
racial/ethnic disparities in care.”) (citation omitted).
54 Id. at 200 fig.6-1.
55 THE SULLIVAN COMM’N, MISSING PERSONS: MINORITIES IN THE HEALTH
Together, African Americans, Hispanic Americans, and American
Indians make up more than 25 percent of the U.S. population but only 9
percent of the nation’s nurses, 6 percent of its physicians, and 5 percent
of dentists. Similar disparities show up in the faculties of health
professional schools. For example, minorities make up less than 10 percent of
baccalaureate nursing faculties, 8.6 percent of dental school faculties,
and only 4.2 percent of medical school faculties.
(2) Participation. The right to participation is particularly
important in terms of the decision-making process for health
policy and health care reform, in part because consulting
affected populations makes it significantly more likely that
the outcomes of policy discussions will address their needs
and thus meet the standards set out by the right to
(3) Access to remedies. The right to health requires that states
provide access to effective legal remedies for violations of
the right to health.58
(4) Provision of information. The right to information
“includes the right to seek, receive and impart information
and ideas concerning health issues.”59
(5) Non-retrogression. Once a government recognizes the
right to health, regression is generally impermissible.60
The procedural elements of the right to health are deeply
intertwined and interdependent with the substantive elements. For
example, effective access to health services requires that potential
patients understand which services are available to them and how
to reach those services. They are more likely to have that
information if they participate in the decision-making process regarding
those services, and the services themselves will more likely meet
their medical and cultural needs if their participation is sought.
Similarly, if a state provides universal access to services but does not
monitor the quality and ethical standards provided by those
services, it will still fail to meet its obligations under the right to
In the United States, the current healthcare system meets
many of the requirements set out by human rights law. For
example, practicing physicians in the U.S. have long followed a code of
ethics maintained by the American Medical Association, which is
one of the requirements of acceptability.61 Medical facilities are
typically sanitary, with potable water and scientifically approved
drugs. There are remedies available for some violations of the
right to health (such as tortious misconduct by physicians) and
there is some legal recognition for portions of the right to health,
such as federal and state laws that provide for a right to emergency
care in hospitals participating in the Medicare program.62
Nonetheless, taken as a whole, U.S. health care reflects significant racial
and income-based health disparities, widespread barriers to
economic accessibility, and uneven quality of care. Worse, these
problems are deepening with each passing year.
U.S. legal obligations to uphold the human right to health
The United States has signed, but not ratified, the primary
treaty that explicitly includes the right to health, the International
Covenant on Economic, Social, and Cultural Rights.63
Nevertheless, the U.S. is legally bound to uphold key portions of the right to
health. It should be noted that the discussion below focuses on
U.S. obligations according to international law. In other words, it is
not a discussion about the extent to which the U.S. recognizes and
enforces the right to health under domestic law, nor is it a
discussion of the degree to which international obligations may be
binding in federal or state courts.64 Rather, the focus here is on how
legal obligations stemming from public international law require
the U.S. to promote the right to health. First, as a State party to
the ICCPR, the United States is obligated to uphold the right to
health insofar as doing so is necessary for preventing the arbitrary
deprivation of life. Second, as a party to the ICERD, the U.S. must
undertake to eliminate discrimination—including de facto
discrimination—in the right to public health and medical care. Third, as a
signatory to the ICESCR, the U.S. is obligated not to take actions
that defeat the object and purpose of that treaty.
ETHICS OF THE AMERICAN MEDICAL ASSOCIATION: CURRENT OPINIONS WITH
62 Alicia Ely Yamin, The Right to Health Under International Law and Its Relevance to the
United States, 95 AM. J. PUBLIC HEALTH 1156, 1157 (2005).
63 Office of the U.N. High Commissioner for Human Rights [hereinafter
OHCHR], Status of Ratification, International Covenant on Economic, Social and
Cultural Rights New York 16 December 1966, http://www2.ohchr.org/english/
bodies/ratification/3.htm (last visited Apr. 23, 2008) [hereinafter Status of
Ratification, ICESCR]. The United States signed the ICESCR on October 5, 1977. Id.
64 For a discussion of the latter, see JEFFREY L. DUNOFF ET AL., INTERNATIONAL LAW:
NORMS, ACTORS, PROCESS: A PROBLEM-ORIENTED APPROACH 253–328 (2002).
The obligation to respect, protect, and fulfill the right to
health as part of the right to life under the ICCPR
The United States signed both the ICCPR and the ICESCR in
1977.65 Congress went on to ratify the ICCPR in 1992, making the
U.S. a State party legally bound by the Covenant’s terms.66
Included in those terms is the right to life under article 6, which
reads: “Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily deprived
of his life.”67 Like the right to health, the right to life is not the
right to be alive, but rather a set of governmental obligations to take
the steps necessary to prevent the arbitrary loss of life within its
jurisdiction. The obligations associated with the right to life are
some of the strongest under international law: they are
non-derogable even in times of public emergency, and according to the
Human Rights Committee, they should be interpreted broadly at
States must ensure that their residents are not arbitrarily
deprived of life for any reason. The causal factors behind deprivation
of life are widely varied: they may be attributable to individual
action (as in criminal activity), to State action (as in actions by
security forces), or to natural disasters, just to name a few examples.
When a State has control over causal factors—such as when the
deprivation of life comes from the State’s own security forces—that
State has an obligation to respect the right to life by preventing
actions that would result in arbitrary deprivation of life.69
Although a State may deprive persons of life through exercise of the
death penalty, such deprivation must be for non-arbitrary reasons
and according to guidelines established under international and
domestic law.70 Even when a State is not directly responsible for
the factors threatening a life, it still must take all possible measures
to protect against loss of that life. For example, in the case of
epidemics and infant mortality, a State must take all possible
measures to protect against the arbitrary deprivation of life.71
Similarly, if a natural disaster threatens the lives of residents in a
particular area, the State has an obligation to do everything
possible to protect the lives of residents living in that region.72
The United States has interpreted the requirement to protect
the right to life broadly in accordance with its obligations under
the ICCPR, both in terms of the breadth of protection and in terms
of state obligations in response to threats. This broad reading is
illustrated in its 2005 report to the Human Rights Committee.73 In
that report, the U.S. cited widely varying causal factors that
triggered the State’s obligation to protect life, including protection of
life for the terminally ill74 and victims of crime.75 In addition, the
U.S. included the Unborn Victims of Violence Act of 2004 as
evidence that it was fulfilling its obligations under article 6.76 By
citing a law that protects the right to life of unborn fetuses, the U.S.
has made it clear that it interprets its obligations under article 6
broadly.77 In addition, the United States has interpreted the
corresponding duties of the right to life broadly, citing both negative
measures (such as prohibiting application of the death penalty to
persons who were under the age of 18 at the time their crime was
committed) and positive measures (such as compensation and
other measures of assistance to victims) in its description of how it
fulfills its obligations under article 6.78
Now that we have established that the U.S. obligations to
respect, protect, and fulfill the right to life under ICCPR article 6
entail certain obligations with respect to the right to health, we
must determine the extent of those obligations. The right to life
requires a country to protect against the arbitrary deprivation of
life from both direct and indirect threats. Some violations of the
right to health—such as tortious misconduct or denial of benefits
for cancer patients—constitute direct threats to life. Other
violations—such as not having access to health insurance—may
constitute indirect threats.79 Whether threats are direct or indirect, they
fall under the obligation to respect the right to life when they are a
product of state policies and laws. This includes, for example, a
state’s failure to prohibit de facto discrimination. As the Human
Rights Committee has noted, it is an article 6 problem when ethnic
minorities are disproportionately affected by threats to life.80 Since
minorities are more likely to die because of threats to their right to
health, the failure of the U.S. to prohibit de facto discrimination in
terms of access to the underlying determinants of health and
health care violates its ICCPR obligation to respect the right to
The obligations to protect and fulfill the right to life are
similarly applicable to the right to health. For the right to life, there is
an obligation to protect even from indirect threats. For example,
the Human Rights Committee has commented that states should
“take all possible measures to reduce infant mortality and to
increase life expectancy.”82 These indicators are closely tied to the
overall ability of a healthcare system to promote the highest
attain77 The U.S. position on this issue raises the possibility of an estoppel argument for
any who would seek to apply a narrower interpretation of ICCPR article 6.
78 US HRC Report, supra note 73, paras. 96–125.
79 See INST. OF MED., INSURING AMERICA’S HEALTH: PRINCIPLES AND
80 HRC Concluding Observations, supra note 72, para. 29 (expressing concern
about studies showing that the death penalty may be imposed disproportionately on
ethnic minorities as well as on low-income groups).
81 See infra Part II(B).
82 HRC General Comment 6, supra note 68, para. 5.
able standard of health for everyone. Therefore, taking “all
possible measures” to address these threats should include ensuring
that the state’s approach to healthcare delivery does not create
barriers to accessing care or threaten the availability, acceptability, or
quality of health goods and services.
The United States interprets its ICCPR article 6 obligations
broadly in accordance with the recommendations of the Human
Rights Committee. Therefore, to prevent the arbitrary deprivation
of life due to inadequate availability, accessibility, acceptability, and
quality of health goods and services, the United States should
respect, protect, and fulfill the human right to health. By including
the right to health in its right to life obligations, the U.S. would be
taking measures to prevent the arbitrary deprivation of life by
promoting the highest attainable standard of health for everyone.
The obligation to respect the right to health as part of
the prohibition against discrimination under the
In addition to its obligations under the ICCPR, the U.S. is also
bound by the terms of the International Convention on the
Elimination of All Forms of Racial Discrimination (“ICERD”), which it
ratified on October 21, 1994.83 ICERD prohibits racial
discrimination in all its forms, which it defines as:
any distinction, exclusion, restriction or preference based on
race, colour, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social,
cultural or any other field of public life.84
Discrimination under the ICERD includes both de facto and de
jure discrimination.85 Article 1(c) of the Convention requires State
Parties to “take effective measures to review governmental, national
and local policies, and to amend, rescind or nullify any laws and
regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists.”86 The Committee on the
Elimination of Racial Discrimination (“CERD”) emphasized the fact that
the Convention prohibits de facto discrimination in its General
Recommendation XIV.87 In 2001, CERD explicitly called on the
United States to “undertake to prohibit and to eliminate racial
discrimination in all its forms, including practices and legislation that
may not be discriminatory in purpose, but in effect.”88
The prohibition against de jure and de facto discrimination
under ICERD applies specifically to the right to health. Article
5(e)(iv) of the Convention calls on State Parties to prohibit
discrimination in all its forms for the right to “public health” and
“medical care.”89 Therefore, the United States is legally obligated
under that treaty to address de jure and de facto discrimination that
affects access to healthcare services. CERD noted this obligation
when it reviewed U.S. practice in 2001, stating, “[T]he Committee
is concerned about persistent disparities in the enjoyment of, in
particular, the right to adequate housing, equal opportunities for
education and employment, and access to public and private
ion, political or other opinion, national or social origin, property, birth
or other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on an
equal footing, of all rights and freedoms.
nized as binding customary international law.94 Therefore, the fact
the U.S. has signed the ICESCR means there is a minimum
requirement to respect the right to health insofar as failing to do so
would defeat the object and purpose of the ICESCR.95
The meaning of “object and purpose” is not defined under
the Vienna Convention, which has led to differing interpretations
regarding the breadth of the article 18 obligation. Some scholars
interpret the provision broadly to mean it applies to the core
content of human rights such as those found in the Convention on the
Rights of the Child.96 However, it is unlikely that such a broad
interpretation applies to the ICESCR; although the CESCR has stated
that the Covenant would be largely deprived of its reason for being
if it did not include a core content for each of the rights contained
within it, the reasoning behind this claim is that the Covenant must
provide clear guidelines for State Parties, not that the core content
is itself the object and purpose of the treaty.97 Furthermore, given
the drafting history of article 18, it is likely the signature obligation
is somewhat narrower than a prohibition on any violation of a
general treaty objective.98 In his article on the signature obligation
94 The United States has signed, but not ratified, the Vienna Convention on the
Law of Treaties. However, the U.S. recognizes that the Convention is “generally
recognized as the authoritative guide to current treaty law and practice.” Message from
the President of the United States Transmitting the Vienna Convention on the Law of
Treaties Signed for the United States on April 24, 1970, at 1, S. Exec. Doc. L., 92-1
(1971). See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 101 (1987); IAN
BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 582 (Oxford U. Press 6th ed.
95 This obligation may be relevant in “assessing US trade and aid policies to the
extent that these have health impacts.” Yamin, supra note 62, at 1158.
96 Bradley, supra note 92, at 308. See, e.g., William A. Schabas, Professor of Law,
University of Quebec, Opening Remarks at the 1998 ABA Annual Meeting of the
Section of Individual Rights and Responsibilities (Aug. 3, 1998), in 67 FORDHAM L.
REV. 2793, 2812 (1999); Letter from Lois Whitman, Executive Director, Human
Rights Watch Children’s Rights Division, to The Honorable Seth Waxman, Solicitor
General, U.S. Department of Justice (Sept. 24, 1999), available at http://hrw.org/
97 CESCR General Comment 3, supra note 29, para. 10. Although one could argue
that when States do not respect the core content, they cannot be moving towards the
overarching goal of promoting the rights contained in the treaty, this interpretation
has not been supported by Committee commentary or jurisprudence. See also
Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) at 27 (S.Afr.)
(discussing the issue of whether minimum core content is equivalent to a self-standing
right under the South African Constitution). “[T]he socio-economic rights of the
Constitution should not be construed as entitling everyone to demand that the
minimum core be provided to them. Minimum core was thus treated as possibly being
relevant to reasonableness under section 26(2), and not as a self-standing right
conferred on everyone under section 26(1).” Id.
98 Bradley, supra note 92, at 308.
and U.S. domestic policies, Curtis Bradley argues that the
obligation “is best construed as precluding only actions that would
substantially undermine the ability of the parties to comply with, or
benefit from, the treaty after ratification.”99 This narrower
interpretation of the article 18 signature obligation is more likely to
apply to the ICESCR given the CESCR’s comments regarding the
object of the treaty.100
In some respects, a narrow interpretation of article 18
obligations means that the United States would not have obligations to
uphold the right to health because of its ICESCR signature.
Indeed, Bradley concludes that the narrower interpretation of the
article 18 obligation means that the obligation is not relevant to
human rights treaties at all, since “pre-ratification conduct
inconsistent with the treaty is not likely to undo the bargain reflected in
the treaty.”101 However, that claim fails to take into account
different types of human rights violations. Although it may be true that
some human rights violations—such as torture, or arbitrary
application of the death penalty, for example—may cease immediately
upon ratification, others involve long-term structural violations
that can prove extremely difficult—if not impossible—to undo
upon ratification. In the United States, for example, extensive
reliance on private sector pharmaceutical companies for research and
development of new drugs may substantially undermine the future
ability of the U.S. to meet obligations associated with the human
right to health.102
Although it is unclear exactly what the Vienna Convention
article 18 obligation includes, even a narrow interpretation of that
obligation means the U.S. should not introduce long-term,
structural reforms that violate the right to health.103 Indeed, the U.S.
should instead uphold one of the core content requirements of the
right to health, which is to develop its system from a rights-based
perspective.104 To do otherwise would make it extremely difficult,
if not impossible, for the United States to comply with the ICESCR
100 CESCR General Comment 3, supra note 29, para. 10.
101 Bradley, supra note 92, at 308.
102 See infra Part IV.
103 This does not mean that structural violations are the only violations that may
arise because of article 18 obligations in relation to the ICESCR. For example, the
obligation may also be relevant in terms of U.S. policies relating to trade or aid, when
those policies impact health. Yamin, supra note 62, at 1158.
104 CESCR General Comment 14, supra note 12, para. 43(f). See supra Part I(A)(i).
C. Political benefits to using the international right to health to reform the U.S. healthcare system
Beyond any legal obligations of the United States to uphold
the human right to health, there are political benefits to using
international law to shape the healthcare reform process in this
country. Given the history of failed healthcare reform in the U.S.
and the ongoing debates focused on the same failed structure
already in place, it is strategically beneficial to approach health and
health care with a new perspective, and specifically one that
refocuses the discussion on health above all else.
Viewing health as an inalienable right is not new in the United
States. In 1944, President Roosevelt argued that every American
has the right to “adequate medical care and the opportunity to
achieve and enjoy good health.”105 The right to health was
subsequently included in the Universal Declaration of Human Rights,106
which was drafted under Eleanor Roosevelt’s guidance.107 More
recently, some cities and states have started recognizing the right
to health, at least in terms of health care. In 2005, citizens in the
City of Seattle passed an advisory ballot measure stating, “Every
person in the United States should have the right to health care of
equal high quality. The Congress should immediately enact
legislation to implement this right.”108 Two years later, the neighboring
city of Tacoma passed a similar measure expressing citizen and city
council support for “state and federal legislation that would
recognize the right of access and availability to high-quality, appropriate
health care for all.”109 North Carolina and Minnesota have
introduced constitutional amendments regarding the right to health,
and Wisconsin has a new public insurance plan that will cover
children in the state by 2008, which recognizes that “every Wisconsin
resident has the right to health care.”110 Therefore, viewing
health—and particularly health care—as a fundamental right in the
United States is neither new nor revolutionary. Rather, it has a
105 Yamin, supra note 62, at 1157.
106 UDHR, supra note 17, art. 25(1).
107 PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS:
VISIONS SEEN 210 (2d ed. 1998).
108 CITY OF SEATTLE HEALTH CARE ADVISORY BALLOT MEASURE (2005), available at
109 City of Tacoma, W.A., Res. 37226 (2007).
110 NAT’L ECON. AND SOC. RIGHTS INITIATIVE, PURSUING A NEW VISION FOR HEALTH
CARE: A HUMAN RIGHTS ASSESSMENT OF THE PRESIDENTIAL CANDIDATES’ PROPOSALS 4
(2007), available at http://www.nesri.org/Human_Rights_Assessment.pdf?sku=C8821.
long history that continues to reemerge throughout the country as
a morally appropriate way to frame healthcare discussions.
In addition to carrying moral and historical resonance,
viewing health as a right also circumvents deeply entrenched positions
regarding the organization and financing of healthcare delivery.
For example, one of the enduring legacies of the Cold War is a
widespread suspicion of anything labeled—reasonably or not—as
“socialized,” including “socialized medicine.”111 The fear that the
United States might descend into totalitarianism if the government
guaranteed access to health care for even part of its population has
incongruently outlasted implementation of programs designed to
do just that.112 Current debates over healthcare reform continue
to fall into the same deeply grooved contours surrounding the role
of government versus market.113 However, a rights-based approach
does an end-run around debates over the appropriate scope of
government in provision of health services. Instead of dictating a
particular relationship between the government and market, a
rightsbased perspective instead focuses on the level of health available to
the population. In other words, the degree of public or private
involvement in healthcare delivery, goods, and services is only
relevant to the extent that it undermines or promotes the overall
health of the population. Taking a rights-based approach
therefore forces healthcare debates to focus on the health of a
population, rather than allowing the discussion to stagnate over
philosophical and political differences on the role of government.
The political benefits to approaching healthcare reform from
a rights-based perspective underscore the need to find a new way to
evaluate reform proposals. The next sections evaluate the current
U.S. healthcare system (or non-system) according to the three
levels of responsibility set out in international law: respect, protect,
and fulfill. At each level of responsibility, the U.S. should
approach health in terms of all of its substantive and procedural
elements, keeping in mind the interdependency of those elements.
Although the discussion primarily focuses on the provision of
health care, it is equally important to address the underlying
determinants of health—such as education, food, and housing—that
are inseparable ingredients to a person’s overall health.
111 Carmalt et al., supra note 60, at 3.
112 Paul Krugman, Op-Ed., Health Care Terror, N.Y. TIMES, July 9, 2007, at A17
(referencing words by former U.S. President Ronald Reagan to the American Medical
Association warning that the program now known as Medicare would lead to
113 Yamin, supra note 62, at 1157–58.
II. FAILING TO RESPECT THE RIGHT TO HEALTH: DISCRIMINATION IN
U.S. HEALTHCARE DELIVERY
The first level of governmental obligation regarding any
human right is the obligation to respect, meaning the United States
may not interfere—directly or indirectly—with the right to
health.114 The United States is obligated to respect the human
right to health insofar as failing to do so may result in arbitrary
deprivation of life because of its obligations under article 6 of the
ICCPR.115 The U.S. is also obligated by its ratification of the
ICERD to respect the right to health specifically in terms of
ensuring that it prohibits all forms of discrimination that affect access to
public health and medical care.116 The CESCR has specifically
noted the relationship between the prohibition against
discrimination and the obligation to respect the right to health in its General
Violations of the obligation to respect are those State actions,
policies or laws that contravene the standards set out in article
12 of the Covenant and are likely to result in bodily harm,
unnecessary morbidity and preventable mortality. Examples
include the denial of access to health facilities, goods and services
to particular individuals or groups as a result of de jure or de
facto discrimination . . . .117
The United States violates the obligation to respect the right
to health because (a) its laws and policies do not prohibit de facto
discrimination in the access to health facilities, goods and services
and (b) such discrimination exists and can result in the arbitrary
deprivation of life.118
A. Failing to prohibit de facto discrimination
Domestic law in the United States prohibits only intentional,
114 CESCR General Comment 14, supra note 12, para. 33. For a discussion of the
three levels of obligation—respect, protect, fulfill—as they relate specifically to the
right to health, see Brigit Toebes, The Right to Health, in Eide et al., supra note 13, at
115 ICCPR, supra note 14, art. 6. See discussion supra Part I(B)(i).
116 ICERD, supra note 15, art. 5(e)(iv). See discussion supra Part I(B)(ii).
117 CESCR General Comment 14, supra note 12, para. 50.
118 Arguably, existing de facto discrimination could also be considered a violation of
the obligation to protect, since it threatens the right to health but is not part of state
activities. However, the fact that the United States does not prohibit de facto
discrimination means that its laws are likely to result in violations of the right to health. See
CESCR General Comment 14, supra note 12, para. 50. Therefore, the problem of de
facto discrimination is analyzed here in terms of the obligation to respect rather than
the obligation to protect.
de jure discrimination.119 The provisions under U.S. law that
prohibit discrimination120 could include de facto discrimination, but
they have not been interpreted that way. Instead, since 1976 the
Supreme Court has interpreted the prohibition against
discrimination under U.S. law to include an intent requirement; the so-called
“intent doctrine” was articulated in Washington v. Davis, which held
that “a law or other official act, without regard to whether it reflects
a racial discriminatory purpose, is [not] unconstitutional solely
because it has a racially disproportionate impact.”121 The intent
doctrine has been extended to apply to actions under Title VI of the
Civil Rights Act of 1964,122 and most recently, to actions
challenging government policy.123 Taken together, these holdings mean
that the United States does not interpret the domestic prohibition
against discrimination to include de facto discrimination. This
interpretation directly conflicts with U.S. obligations under the
ICCPR and ICERD, both of which specifically include de facto
discrimination as part of the overall prohibition against
discrimination.124 Insofar as the U.S. legal stance allows de facto
discrimination to continue in access to health facilities, goods and
services, it also constitutes a violation of the obligation to respect
the right to health.
B. Existing de facto discrimination and health disparities
In addition to failing to prohibit de facto discrimination, the
United States also has significant de facto discrimination in terms of
access to health care and to the underlying determinants of health.
The effects of this discrimination are dramatic. For example,
whites are expected to live 5.2 years longer on average than African
119 Washington v. Davis, 426 U.S. 229, 239 (1976); Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 287 (1978); Guardians Assn. v. Civil Serv. Comm’n of N.Y., 463 U.S. 582,
610 (1982) (Powell J., concurring); Alexander v. Sandoval, 532 U.S. 275, 281 (2001).
120 42 U.S.C. § 2000d et seq.; U.S. CONST. amend. XIV, § 1.
121 Washington, 426 U.S. at 239.
122 Bakke, 438 U.S. at 287; Guardians Assn., 463 U.S. at 610.
123 Alexander, 532 U.S. at 281.
124 In 2000, the United States submitted that “existing U.S. law provides protections
and remedies sufficient to satisfy the requirements of the [ICERD]. Moreover,
federal, state and local laws already provide a comprehensive basis for challenging
discriminatory statutes, regulations and other governmental actions in court, as well as
certain forms of discriminatory conduct by private actors.” Third Periodic Reports of
States Parties Due in 1999: Addendum: United States of America, U.N. CERD, 59th Sess.,
para. 171, U.N. Doc. CERD/C/351/Add.1 (2000). However, at the time of this
statement, it was still possible for U.S. citizens to challenge de facto discrimination of
government policy. Alexander, 532 U.S. at 293.
Americans,125 infant mortality rates for African Americans are
more than double that for whites,126 and significant disparities
exist in a wide variety of other health indicators, including cardiac
disease and HIV/AIDS.127 Disparate health impacts are not limited
to African Americans; American Indians and Pacific Islanders also
have consistently poorer health than whites, as do other
subpopulations such as those of differing nationality or immigration status.128
Racial disparities in health indicators are particularly dramatic
when they are compounded by gender. For example, maternal
mortality rates for African American women are nearly four times
what they are for white women.129
These disparities are no accident; they are rooted in structural
inequities that have existed in this country since its inception.130
Although they have many direct and indirect causes, disparate
health outcomes continue to exist (and in some cases, worsen)
because there is unequal access to both health care and to the
underlying determinants of health.131 Underlying determinants of health
include a wide variety of factors, but some of the most important
are the conditions of housing and education and the physical and
social environments in which people live.132 The United States has
high levels of racial residential segregation, with racial groups
living in different, isolated geographic areas.133 Where people live is
a fundamental causal factor in terms of health outcomes, especially
when it is combined with poverty.134 For example, poor African
125 See NAT’L CTR. FOR HEALTH STATISTICS, CTRS. FOR DISEASE CONTROL AND
PREVENTION, HEALTH, UNITED STATES, 2006, at 176 tbl.27 (2006), available at http://www.cdc.
126 See NAT’L CTR. FOR HEALTH STATISTICS, CTRS. FOR DISEASE CONTROL AND
PREVENTION, NATIONAL VITAL STATISTICS REPORT, VOL. 50, NO. 12, INFANT MORTALITY
STATISTICS FROM THE 2000 PERIOD LINKED BIRTH/INFANT DEATH DATA SET, 10 tbl.1 (2002),
available at http://www.cdc.gov/nchs/data/nvsr/nvsr50/50_12t1.pdf.
127 CERD WORKING GROUP ON HEALTH AND ENVIRONMENTAL HEALTH, UNEQUAL
HEALTH OUTCOMES IN THE UNITED STATES 9 (2008), available at http://www.prrac.
org/pdf/CERDhealthEnvironmentReport.pdf [hereinafter CERD Shadow Report].
128 Id. at 10.
129 CERD Shadow Report, supra note 127, at 11; NAT’L CTR. FOR HEALTH STATISTICS,
CTRS. FOR DISEASE CONTROL, Maternal Mortality and Related Concepts, Vital Health
Statistics, Series 3, No. 33, at 13-14 (Feb. 2007), available at www.cdc.gov/nchs/data/
130 See UNEQUAL TREATMENT, supra note 53, at 1; CERD Shadow Report, supra note
127, at 3.
131 Benn Greenspan, Health Disparities and the US Health Care System, 116 PUB.
HEALTH REP. 417, 417 (2001).
132 CERD Shadow Report, supra note 127, at 18–20.
133 David R. Williams & Chiquita Collins, Racial Residential Segregation: A
Fundamental Cause of Racial Disparities in Health, 116 PUB. HEALTH REP. 404, 404 (2001).
134 Greenspan, supra note 131, at 417–18.
Americans are more likely than poor whites to live in areas of
concentrated poverty.135 These areas receive fewer public investments,
which leads to deteriorating infrastructure, housing, education,
and a lower overall standard of living that is directly related to a
variety of lower health outcomes.136 In addition, racial residential
segregation results in problems of health care availability:
approximately 50 million people—a disproportionate percentage of whom
are minorities—live in areas that are underserved by physicians.137
The racial divide in access to the underlying determinants of
health is exacerbated by the lack of available, accessible,
acceptable, and quality health care for minorities in the United States.
The high cost of health goods and services means that people
without health insurance are less likely to have economic access to
services. In the United States, there are significant racial disparities in
terms of who does or does not have insurance. For example, the
2006 National Healthcare Disparities Report (“NHDR”) found that
decreased access to health care for Hispanics is directly related to
the fact that “Hispanics of every income and education level were
significantly less likely than respective non-Hispanic Whites to have
However, economic barriers to accessing health care in the
U.S. are more complex than who does or does not have insurance.
Although the vast majority of uninsured people do not have access
to health care, it does not follow that the people with insurance do
have access to care. In other words, just because people have
health insurance does not mean they can afford health care.
Indeed, African Americans in the United States have about the same
access as whites to health insurance, but they still face worsening
economic access to care.139 This finding reflects the problem of
underinsurance in the United States, which occurs when individuals
hold health insurance policies that provide inadequate coverage.140
Although there is some debate over what constitutes adequate or
inadequate coverage, it is at least clear that when a group of
insured individuals continues to face significant financial barriers to
accessing health care, that insurance is not sufficient to provide
Problems of availability and accessibility are compounded for
minorities by issues of quality and acceptability. In the United
States, racial disparities exist across multiple dimensions of quality
of health care.141 For example, the NHDR found that during the
years studied, there were significantly higher rates of postoperative
complications for blacks than for whites142 and significantly higher
rates of death following complications in care for Asians or Pacific
Islanders than for whites.143 The acceptability of care—for
example, in terms of patient-provider communications and the
timeliness in responding to patient needs—also reflects significant and
worsening differences between minorities and whites.144 In
addition to conclusions made by the latest NHDR, the Institute of
Medicine’s extensive review of inequality in health care found that
minorities experience a wide range of barriers to quality care,
including “barriers of language, geography, and cultural
The lack of available, accessible, acceptable, quality health
care for minorities is compounded by the lack of access to the
underlying determinants of health. It therefore violates the human
right to health as it is defined under international law. In addition,
it violates the U.S. obligation to respect the right to life under
article 6 of the ICCPR.146 Since the U.S. does not recognize de facto
discrimination as a prohibited form of discrimination (in violation
of its obligations under the ICERD), these disparities do not
trigger a domestic legal response. Instead, the bifurcated system has
continued to produce health inequity, violating the obligation to
respect the human right to health, and violating U.S. obligations
under the ICCPR and ICERD.
III. FAILING TO PROTECT THE RIGHT TO HEALTH: STRUCTURAL
FLAWS IN U.S. HEALTH CARE
The obligation to protect requires a state to prevent third
parties from interfering with guarantees associated with the human
141 See 2006 NHDR, supra note 138, at 2; UNEQUAL TREATMENT, supra note 53, at 1.
142 See 2006 NHDR, supra note 138, at 70.
143 See id. at 73.
144 See id. at 3.
145 UNEQUAL TREATMENT, supra note 53, at 1.
146 See ICCPR, supra note 14, art. 6. See supra Part I(B)(i).
right to health.147 The United States has an obligation to protect
the right to health as part of its obligation to prevent the arbitrary
deprivation of life under article 6 of the ICCPR.148 To the extent
that failing to protect against these actions may allow structural
flaws to deepen, the U.S. also violates the obligations associated
with its signing of the ICESCR.149
Third parties may include other states, individual actors, or
privately held entities, such as for-profit companies or
transnational corporations.150 The nature of prohibited third-party
interference is varied and may include individual or systemic threats.
For example, under the Sixth Amendment, criminal defendants
have a right to a speedy and public trial.151 An individual threat to
a defendant’s trial may occur if a person disrupts the court’s
proceedings. The state protects against that threat in the form of a
judge who maintains order in the courtroom. However, the duty
to protect may also be triggered by structural flaws that result in
systemic violations. A systemic threat to the indigent criminal
defendant’s rights, for example, would arise if the only available
defense attorneys were those that required payment for their services.
The state protects against this systemic threat to the right to a fair
trial by providing public defenders that represent indigent
criminal defendants at no cost.152
Like the right to a fair trial, the right to health also requires
protection against both individual and systemic threats. To that
end, the CESCR states that the right to health includes a duty “to
ensure that privatization of the health sector does not constitute a
threat to the availability, accessibility, acceptability and quality of
health facilities, goods and services.”153 Privatizing the healthcare
sector is not in and of itself a human rights issue; from a
rightsbased perspective, what matters is not how a system is financed but
whether the system promotes the highest attainable standard of
147 See General Comment 14, supra note 12, para. 33.
148 ICCPR, supra note 14, art. 6. See supra Part I(B)(i).
149 See Vienna Convention on the Law of Treaties, supra note 21, art. 18.
150 See Jochnick, supra note 28, at 66. The standard for holding a state liable for a
private actor’s actions is due diligence: a state must have taken reasonable or serious
steps to prevent or respond to an abuse by a private actor, including investigating and
providing a remedy such as compensation. See, e.g., Case of Vela´squez-Rodr´ıguez v.
Honduras, 1989 Inter-Am. Ct. H.R. (ser. C) No. 4, at 35 (July 29, 1988) available at
151 U.S. CONST. amend. VI.
152 See Gideon v. Wainwright, 372 U.S. 335 (1963).
153 CESCR General Comment 14 supra note 12, para. 35; see also Toebes, supra note
114, at 181.
mental and physical health.154 However, if a state chooses to
privatize its healthcare sector, it must ensure that its reliance on the
private sector does not threaten the right to health.155
Like most countries, the United States uses a mixture of
private and public insurers to provide access to health goods and
services. However, unlike other countries, the U.S. relies primarily on
for-profit entities to provide access to health services and goods. In
2006, approximately two-thirds of the non-elderly American
population (about 158 million people) had private health insurance,
while the remaining third held publicly provided insurance or
were uninsured.156 Most of those with private health insurance—
sixty-one percent157—are covered by their employers or as an
employee-dependant.158 Public insurance is available for the very poor
and for the elderly through Medicaid and Medicare,
respectively.159 It is also available for children in families within a certain
percentage of the poverty line through the State Children’s Health
Insurance Program (SCHIP).160 These programs provide an
important safety net, but their exclusivity contravenes the
fundamental principle of a human right to health, which calls for universal
access to health facilities, goods, and services.161 Moreover, the
high costs of medical treatment in the United States coupled with
low-income eligibility requirements means that many millions of
people who cannot afford private insurance remain ineligible for
154 See ICESCR, supra note 12, art. 12.
155 Discussions of how to protect a right may overlap with a state’s obligation to
fulfill a right. For example, the judge who holds a disruptive party in contempt of
court protects the rights of the individual on trial, but the state that pays that judge to
do his or her job is fulfilling the right to a fair trial by taking positive measures to
ensure that right can be realized. This section focuses on structural flaws associated
with U.S. health care—and specifically the way in which the current system provides
incentives to deny access to care—that violate the duty to protect. The next section
turns to the failure to take positive measures to fulfill the right to health.
156 See KAISER COMM’N ON MEDICAID AND THE UNINSURED, THE UNINSURED: A PRIMER
2 (2007), available at http://www.kff.org/uninsured/upload/7451-03.pdf
[hereinafter THE UNINSURED: A PRIMER]; THE KAISER FAMILY FOUND. AND THE HEALTH RES. AND
EDUC. TRUST, EMPLOYER HEALTH BENEFITS 2007 ANNUAL SURVEY 1 (2007), available at
http://www.kff.org/insurance/7672/upload/76723.pdf [hereinafter EMPLOYER
HEALTH BENEFITS 2007].
157 See THE UNINSURED: A PRIMER, supra note 156, at 2.
158 See id. See generally EMPLOYER HEALTH BENEFITS 2007, supra note 156.
159 See U.S. Department of Health & Human Services, Centers for Medicare &
Medicaid Services, http://www.cms.hhs.gov/medicareGenInfo (last visited Apr. 23,
160 See State Children’s Health Insurance Programs (SCHIPs), 42 C.F.R. § 457.310
161 Carmalt et al., supra note 60, at 9.
the public safety net.162
The dominance of the private sector in the United States
violates the right to health for two reasons: (1) because insurance
companies consistently deny coverage to unhealthy or poor
individuals, which results in problems of availability and accessibility, and
(2) because companies consistently deny benefits to insured
individuals, which results in problems of accessibility and quality. In both
cases, the violations arise not because of reliance on private
companies per se, but rather because of the failure to ensure that the
organizations providing access to health care have the ultimate goal of
promoting health for the population as a whole.
Denial of coverage to the poor and unhealthy
Nearly seventy percent of the people without health insurance
coverage are unable to afford it or were denied coverage due to
poor health, illness, or age.163 This means that the poorest and
sickest Americans are unable to obtain private health insurance.
Although some of those without insurance are eligible for public
insurance, millions are not: in 2005, three-quarters of the 44.6
million people without insurance were ineligible for Medicaid on the
basis of income.164 Being ineligible for Medicaid does not mean
that they can afford health insurance: of the approximately 33.5
million uninsured people ineligible for Medicaid, only about 8
million had annual incomes more than 300% of the federal poverty
The incentives of the U.S. market-based healthcare system
lead to denial of coverage to the poor and to the unhealthy.166
More than any others, these two groups lack access to health care
due almost entirely to an unregulated market-based system.
Peo162 See JOHN HOLAHAN ET AL., KAISER COMM’N ON MEDICAID AND THE UNINSURED,
CHARACTERISTICS OF THE UNINSURED: WHO IS ELIGIBLE FOR PUBLIC COVERAGE AND WHO
NEEDS HELP AFFORDING COVERAGE? 1 (2007), available at http://www.kff.org/unin
163 Among those who say they are uninsured, 54% said they did not have insurance
because it is too expensive. An additional 15% said they did not have insurance
because they could not get coverage/were refused coverage due to poor health, illness,
or age. ABC/KFF/USA Survey, supra note 6, at chart 11.
164 HOLAHAN ET AL., supra note 162, at 1.
165 See id.
166 The very poorest Americans can obtain public insurance in the form of
Medicaid. However, most of those who are currently uninsured are not poor enough to
qualify for Medicaid but still cannot afford private insurance. See generally U.S. Dep’t
of Health & Human Services, Centers for Medicare & Medicaid Services, www.
cms.hhs.gov/MedicaidEligibility (providing general Medicaid eligibility guidelines)
(last visited Apr. 23, 2008).
ple living in poverty typically have lesser access to the underlying
determinants of health, so that poverty and health are deeply
1. Incentives to deny coverage
Instead of providing a financial incentive to promote health,
private health insurance companies have an incentive to deny access to
health care, goods, and services. In particular, there is a financial
incentive to provide coverage to the healthy and wealthy and to
deny it to individuals who are unhealthy and/or poor (two
qualities that frequently go together, since poverty typically results in
restricted access to the underlying determinants of health).168
The incentive to deny coverage to people who are poor arises
from the inability of poor people to pay insurance premiums. Most
people in the U.S. who have private health insurance are covered
by their employers or as an employee dependent.169 However, the
vast majority (over eight in ten) of the people who are uninsured
come from working families.170 In other words, even with
Medicaid in place to cover the very poorest portion of the population,
working families cannot afford to purchase health insurance.
From the insurance company’s perspective, there is no incentive to
provide insurance to people who cannot afford it, since those
people will be unable to pay the premiums. Since the insurance
company’s goal is to maintain profitability rather than to increase
accessibility to health care, there is no incentive to extend coverage
to those who cannot afford to purchase a policy.
Market-based incentives similarly work against the interests of
those who are unhealthy. The nature of health expenses is such
that most of the population will require few payments most of the
time. For example, in 2003, “health spending roughly followed the
‘80–20 rule’: 20 percent of the population accounted for 80
percent of expenses.”171 From an insurance company’s perspective,
therefore, there is a financial incentive to cover the eighty percent
of people who will not need services (except those who cannot pay
for the policy) and there is an incentive not to insure the twenty
percent who do need services (i.e. the sick, who are, typically, also
poor). Thus, those who are in the greatest need of healthcare
cov167 See CERD Shadow Report, supra note 127, at 16.
168 See PAUL FARMER, INFECTIONS AND INEQUALITIES: THE MODERN PLAGUES (1999).
169 See HOLAHAN ET AL., supra note 162.
170 THE UNINSURED: A PRIMER, supra note 156, at 4.
171 Paul Krugman and Robin Wells, The Health Care Crisis and What to Do About It,
53(5) N.Y. REV. BOOKS, Mar. 23, 2006, at 38.
erage are the most likely to have difficulty obtaining it.172
2. Social costs
The high cost of medical goods and services in the United
States means that having health insurance directly corresponds to
economic access for most health facilities, goods, and services.173
People without health insurance are significantly more likely to go
without needed medical care, and are less likely to receive
preventive care when healthy or regular care for chronic conditions.174
According to the Institute of Medicine, the lack of health
insurance causes approximately 18,000 deaths in the United States each
year.175 For many people without insurance (one in six),
emergency rooms are the regular source of care because those
departments are the only ones required to treat all patients, regardless of
ability to pay.176 Given the high costs of emergency care and the
forty-seven million people without insurance,177 this reliance on
emergency departments drives costs up across the board,
negatively affecting access to medical goods and services for both the
uninsured and the insured.
Denial of benefits
In addition to the incentives to deny coverage, there is a
financial incentive for companies to deny coverage for health benefits for
people who already hold policies. Indeed, patients with poor
physical functioning are more likely to report denial of coverage from
172 Although the U.S. has addressed this problem in a limited way by providing
publicly available health insurance for the very poor and for the elderly (through
Medicaid and Medicare), those programs are not extensive enough to reach huge
portions of the population given the extent of U.S. reliance on private insurance to
provide access to health care for its population. See OFFICE OF THE ASSISTANT SEC’Y
FOR PLANNING AND EVALUATION, POLICY INFO. CTR.–DEP’T OF HEALTH AND HUMAN
SERVS., ASPE ISSUE BRIEF: LONG-TERM GROWTH OF MEDICAL EXPENDITURES–PUBLIC AND
PRIVATE (2005), http://aspe.hhs.gov/health/medicalexpenditures (last visited Apr.
173 INST. OF MED., COVERAGE MATTERS: INSURANCE AND HEALTH CARE 18 (2001),
available at http://www.nap.edu/openbook/0309076099/html/R1.html [hereinafter
174 Id. at 22.
175 Press Release, Institute of Medicine Board on Health Care Services, IOM Report
Calls for Universal Health Coverage by 2010; Offers Principles to Judge, Compare
Proposed Solutions (Jan. 14, 2004), available at http://www8.nationalacademies.org/
176 COVERAGE MATTERS, supra note 173, at 32.
177 Id.; see also CENSUS BUREAU, supra note 2, at 21 tbl.6.
insurance companies.178 The practice of denying benefits
jeopardizes economic access to care and the quality of care received.
However, the problem is more complex than simply a matter of
admonishing companies for isolated instances of denial of benefits.
The system as it is currently set up means that it is more profitable for
companies to deny health benefits, which results in systemic
violations of the right to health.
This is particularly true as the medical profession becomes
increasingly advanced in ways that involve expensive equipment and
training. Many of the technological advances in care provision—
such as magnetic resonance imaging (MRI) scans—have high
upfront costs for purchase and installation.179 Although it is medical
providers rather than insurance companies who are responsible for
the up-front costs, those costs translate into high per-use costs that
are submitted to insurance companies. Moreover, using expensive
equipment requires additional training, adding to the cost of
providing good medicine. Overall, training the medical profession has
become increasingly expensive as education has improved and
expanded over time. In other words, providing good
medicine—particularly in an industrialized society with highly trained
practitioners—is an expensive endeavor. Although it may
sometimes be true that the cheapest treatment is also the best way to
promote health in the population, the opposite is often the case.
Therefore, the goal of an insurance company (i.e. to make profit)
works at cross-purposes to the goal of providing good medicine.
Although there have been isolated efforts to force insurance
companies to change their policies regarding coverage of
expensive services, those efforts fail to address the underlying structural
flaw of relying on profit-based organizations to deliver access to
unprofitable services.180 Denying coverage for health benefits results
in economic barriers to access by making needed services too
expensive for patients to afford. It also creates problems in quality,
178 Steven D. Pearson, Patient Reports of Coverage Denial: Association With Ratings of
Health Plan Quality and Trust in Physician, 9 AM. J. MANAGED CARE 238, 238 (2003).
179 These costs are estimated to be approximately $2 million. Leigh Page, Should
You Add an MRI?, Outpatient Surgery Mag., Mar. 2005, http://www.outpatientsurgery.
net/2005/03/print&id=4506 (last visited Apr. 23, 2008).
180 One example of an effort to change insurance company policies comes from a
recent arbitration in California that awarded the claimant $9 million in damages
when her insurance company dropped her in the midst of chemotherapy treatments
for breast cancer. The company’s policy (which it has announced it will change)
rewarded employees for denying insurance coverage to their insured or for meeting
cancellation quotas. Lisa Girion, Insurer loses, alters course, A woman with cancer whose
policy was canceled is awarded millions, L.A. TIMES, Feb. 23, 2008 at 1.
since medical decisions are being made on the basis of cost instead
of on the basis of what is medically appropriate in a given situation.
Relying extensively on the private sector to provide access to
health care does not have to threaten the right to health; it just
happens to do so in the United States. Other countries use private
health insurance as part of their healthcare delivery and do not
have the widespread systemic violations to the right to health that
exist in the United States. For example, the United Kingdom and
the Netherlands utilize both public and private health insurance.
In the U.K., private insurance provides a niche-oriented
supplement to publicly provided coverage.181 In the Netherlands, the
wealthiest third or so of society is responsible for paying for most of
its own health care, with public funds covering the rest.182 Yet
according to the World Health Organization, both the U.K. and the
Netherlands have significantly more equitable health systems than
the United States183 and both meet the majority their obligations
associated with the human right to health.184 From a rights-based
perspective, what matters is the structure of the relationship
between public and private provision of health care, not simply the
existence of one or the other.185
The private health industry in the United States currently
operates in such a manner as to constitute a threat to the right to
health. The widespread and systematic threat continues to cause
the arbitrary deprivation of life, and the United States is legally
181 Carolyn Hughes Tuohy et al., How Does Private Finance Affect Public Health Care
Systems? Marshaling the Evidence from OECD Nations, 29 J. HEALTH POL. POL’Y & L., 359,
182 Id. at 364; Carmalt et al., supra note 1, at 10.
183 The U.K. and the Netherlands ranked 8-11 and 20-22, respectively, in terms of
fairness of financial contribution to health systems, as compared to a ranking of 54-55
for the United States. WORLD HEALTH REPORT 2000, supra note 3, at 148–49, 188–89.
184 In reviewing the practices of the U.K. and the Netherlands in terms of their
obligations under the ICESCR, the CESCR has made recommendations for improving
the right to health, such as shortening waiting times for receipt of health services.
However, the Committee has also noted positive aspects, such as the adoption of
national standards of care. Moreover, it has refrained from additional
recommendations needed to bring the states in line with their ICESCR obligations under article
12, which implies that the states are mostly meeting their obligations under the
Covenant. CESCR, Concluding Observations of the Committee on Economic, Social and Cultural
Rights: United Kingdom of Great Britain and Northern Ireland, 17th Sess., para. 15, U.N.
Doc. E/C.12/1/Add.19 (1997); CESCR, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland,
The Crown Dependencies and the Overseas Dependent Territories, 28th Sess., para. 7, U.N.
Doc. E/C.12/1/Add.79 (2002); CESCR, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: The Netherlands, 37th Sess., para. 30, U.N. Doc. E/
185 Tuohy et al., supra note 181, at 360.
obligated to protect that right by its ratification of the ICCPR.186
Even where individual violations of the right to health fall short of
threatening life, however, it is in the best interests of the United
States to address the structural reasons behind systemic violations.
To do otherwise risks continuing the status quo, which sees
increasing numbers of Americans unable to access quality health care,
goods, and services.
IV. FAILING TO FULFILL THE RIGHT TO HEALTH: REFORM
MEASURES THAT MAKE THINGS WORSE
The obligations to respect and protect are complimented by a
third level of governmental responsibility under human rights law:
the obligation to fulfill. The United States has an obligation to
fulfill the right to health because doing so contributes to the
prevention of arbitrary deprivation of life, in accordance with its
obligations under the ICCPR.187 Moreover, because the U.S. signed the
ICESCR, it is prohibited from taking actions that would defeat the
object and purpose of that treaty, such as introducing structural
changes that make it unlikely or impossible for the state to meet its
article 12 obligations in the future.188 Therefore, the United States
should take a rights-based approach to healthcare reform and
regulation so that it does not deepen structural flaws that jeopardize
future adherence to the right to health.
According to the CESCR, the obligation to fulfill the right to
health “requires States to adopt appropriate legislative,
administrative, budgetary, judicial, promotional and other measures towards
the full realization of the right to health.”189 Those measures
should be designed to implement the right to health, and they
should not only include the provision of health care, but should
also include “equal access for all to the underlying determinants of
health, such as nutritiously safe food and potable drinking water,
basic sanitation and adequate housing and living conditions.”190
Violations of the obligation to fulfill the right to health include,
inter alia, the failure to “adopt or implement a national health
policy designed to ensure the right to health for everyone.”191
Although the U.S. relies extensively on the private sector to
186 ICCPR, supra note 14, art. 6(1). See supra Part I(B)(i).
188 ICESCR, supra note 12, art.12. See supra Part I(B)(iii).
189 CESCR General Comment 14, supra note 12, para. 33.
190 Id. at para. 36.
191 Id. at para. 52.
provide access to health goods and services in this country, it does
not rely exclusively on market mechanisms to govern private sector
activities.192 Instead, the U.S. has an extensive set of laws and
regulations that apply to private delivery of health care, goods, and
services. Some of these laws relate to the way the health industry
operates. For example, the Employment Retirement Income
Security Act (“ERISA”) preemption provision is a federal statute that
basically prohibits individuals from suing their managed care
organizations.193 Other laws address specific bits and pieces of
healthcare delivery, such as the requirement that managed care
organizations approve hospital stays for mothers who have just
given birth.194 Despite these federal attempts to regulate the health
system, the United States fails to recognize the right to health at
the national level. It is the only industrialized country to do so,
and the Supreme Court has declared it unnecessary for Congress
to fund even constitutionally protected health services.195 The
failure to use a rights-based approach means that federal efforts
remain fragmented or superficial at best, and harmful to health at
This lack of recognition of the right to health has meant that
the U.S. does not take a rights-based approach to reforms. For
example, the 2003 Medicare Prescription Drug, Improvement, and
192 Some commentators suggest that the market flaws that currently exist in health
care access and delivery result from too much government intervention (i.e. tax code
provisions that result in employer-based care), which prevents a system where
consumers could make the lowest cost choice. See, e.g., CATO HANDBOOK ON POLICY 74
(6th ed. 2005). However, that argument only addresses the problem of an expensive
system, not the problem of a system that fails to promote the health of the population
as a whole. Since good care is often expensive care, promoting the lowest-cost choice
does not necessarily correlate to promoting the best choice for health. Moreover, it
would still be the case that some people are simply not profitable to insure. In
addition, the market model does not account for the fact that individuals have no choice
about whether or not they need health care; unlike other types of insurance (e.g.
property insurance), the “consumer” has no option of simply forgoing the benefits
offered by the insurance. The result is (a) an inequitable bargaining position for
individuals needing access to health care, and (b) increased reliance on emergency
services for non-emergency treatment. Therefore, even with a direct relationship
between individuals and private health insurers, there would still be little or no market
incentive for health insurance providers to compete in terms of providing better
193 29 U.S.C. § 1144(a). ERISA preempts state-based causes of action against
applicable employee benefit plans. The purpose of ERISA is to allow broad removal to
federal court to ensure a uniform regulatory regime over employee benefit plans.
AETNA Health Inc. v. Davila, 542 U.S. 200, 208 (2004).
194 Newborns’ and Mothers’ Health Protection Act Of 1996, 42 U.S.C. § 300gg-4
195 Maher v. Roe, 432 U.S. 464, 469 (1977); Carmalt et al., supra note 60, at 9.
Modernization Act (“MMA”) introduced a complex set of
structural changes to the Medicare and Medicaid programs.196 These
include an increased role for private pharmaceutical companies in
the provision of prescription drugs to Medicare and Medicaid
recipients, thus expanding the reliance on private industry to
develop and provide needed drugs. However, the market incentives
of the pharmaceutical industry do not promote the highest
attainable standard for health for all. Since these companies must make a
profit, they have an incentive to research and develop new drugs
that will be profitable. Drugs are designed and targeted not at the
populations that most need relief, but at the populations with the
most capital, which results in the majority of research investment
going to “me-too drugs” instead of research for new therapies.197
Therefore, the most vulnerable populations are least likely to
receive the treatment they need.
This is not only a violation of the right to health right now; it
also sets in place a system that will continue to violate the right to
health into the future. This system discourages research and
development in areas of medicine needed by the most vulnerable
populations. In this way, the structural flaws of U.S. health care that
violate the right to health undermines the future ability of the
United States to promote the right to health.198 Although the U.S.
has not ratified the ICESCR, its signature alone obligates it to
refrain from activities that would defeat the object and purpose of
the treaty. Structural change to health care in the United States is
needed so that it will be possible for the U.S. to fulfill its
obligations under the Covenant if and when it chooses to ratify it.
By framing issues in terms of how to expand the existing
system instead of reframing them according to the goal of promoting
an overall right to health, discussions about health care reform
gloss over important underlying issues that result in barriers to
196 Pub. L. No. 108-173, § 641, 117 Stat. 2066. The MMA introduced two large
changes: first, it created a separate set of plans that only cover prescription drugs; and
second, it provided for a substantial increase for the participation of private health
care providers to participate in the Medicare system. See Carmalt et al., supra note 60,
197 Michael S. Wilkes and Jerome R. Hoffman, The Truth About the Drug Companies:
How they Deceive Us, and What to Do About It; On the Take: How Medicine’s Complicity With
Big Business Can Endanger Your Health 293(24) JAMA 3107, 3107 (2005) (book review);
see also Marcia Angell, The Truth About the Drug Companies, 45 JURIMETRICS J. 465, 467
198 The same analysis applies to proposed reforms, meaning that proposals involving
structural reform should not maintain or introduce structural flaws that undermine
the future ability of the United States to promote the right to health.
health care. For example, the debate over whether individuals
should be required to purchase health insurance policies makes
the crucial assumption that having an insurance policy will result in
having access to health services. However, as discussed above,
holding a health insurance policy is not enough to guarantee
access to health services.199 Moreover, expanding the pool of people
who hold insurance policies does little to address issues like racial
disparities, uneven quality of care, or the incentives to companies
to deny coverage and benefits. In other words, since reform
proposals do not begin with the goal of promoting an overall right to
health, they do not end up promoting the highest attainable
standard of health for everyone. Instead, the entrenched politics of
health care reform continue to govern national debates. By failing
to reshape its discussions from a rights-based perspective, the
United States fails to fulfill the international human right to
The United States has large numbers of residents who
currently lack access to available, acceptable, and quality health
care.200 The problems plaguing U.S. health care do not result from
a failure to spend money on the problem. Indeed, the United
States spends more per capita on health care than any other
country on earth.201 Despite all this spending, however, the U.S. has
millions of people without access to health care and growing numbers
without access to health goods and services, in large part because
of structural flaws with the current way in which health care is
or199 See supra Part II(B); see also ABC/KFF/USA Survey, supra note 6 ch.3; Schoen et
al., supra note 2.
200 See Carmalt et al., supra note 60.
201 Gerard F. Anderson et. al., It’s the Prices, Stupid: Why the United States is so Different
from Other Countries, 22 HEALTH AFFAIRS 89, 90–91 (2003) (“The U.S. level [of per
capita health spending] was 44 percent higher than Switzerland’s, the country with
the next-highest expenditure per capita . . . .”).
Switzerland also relies extensively on private health insurance. The CESCR has
criticized Switzerland for the high costs of its health services, which are detrimental to the
standards of living for both workers and pensioners. CESCR, Concluding Observations
of the Committee on Economic, Social and Cultural Rights: Switzerland, CESCR, 19th Sess.,
para. 24, U.N. Doc. E/C.12/1/Add.30 (1998). Switzerland’s health system also has
relatively high levels of inequity, ranking 38-40 on the World Health Organization’s
evaluation of fairness of financial contribution to health systems, as compared to
neighboring France (ranking 26-29) and Germany (ranking 6-7). The World Health
Organization measures the equity of health systems in terms of the health financing
contribution of a household, which is defined as “as the ratio of total household
spending on health to its permanent income above subsistence.” WORLD HEALTH
REPORT 2000, supra note 3, at 148–88 (2000).
ganized. Compounding the lack of economic access are the lack of
available services for minorities and rural populations,
disproportionately low minority representation in the health workforce that
results in culturally unacceptable care, and uneven quality of care
across the population.202
International human rights law begins with the premise that
healthcare systems should be structured to promote the highest
attainable standard of health for everyone. This presents a different
approach to thinking about the U.S. approach to health care:
instead of asking how low-income families can best afford health
insurance, human rights law asks how insurance can best provide
health coverage to low-income families. By reversing the question,
a rights-based approach avoids common assumptions like the idea
that providing insurance results in access to health goods and
services. It also reshapes deeply politicized discussions about the role
of government in providing health care.203 Under a human rights
approach, the role of the government is to protect and ensure the
availability, accessibility, acceptability, and quality of health
facilities, goods, and services. Whether government provides health
services directly, relies on the market for such services, or uses a
combination of both is only relevant insofar as it affects the ability
of people to have the highest attainable standard of health.
Although the United States is not a party to the ICESCR, it is
nonetheless legally required to uphold the right to health insofar
as that right is part of its ICCPR article 6 obligations. In addition,
as a party to the ICERD, the U.S. is legally required by
international law to recognize and address the existing de facto segregation
of its healthcare system. Finally, the fact the U.S. has signed the
ICESCR means that it is legally required to refrain from defeating
that treaty’s object and purpose. Taken together, these obligations
mean that the United States has some legal duty to respect,
protect, and fulfill the right to health. However, even beyond any legal
obligation, it is in the country’s best interest to reform health care
from a rights-based perspective. To do otherwise risks continuing
the downward spiral of inequitable coverage and prohibitive costs
by reinforcing existing structural flaws. The United States should
use the human right to health to rethink its approach to health
care and to reform its system to promote the highest attainable
standard of health for everyone.
202 Carmalt et al., supra note 60.
203 Yamin, supra note 62, at 1158 (2005) (discussing the ways in which framing
health as a right can shift the contours of debates about the role of state and market).
14 International Covenant on Civil and Political Rights, opened for signature Dec . 16 , 1966 , S. Exec . E, 95 - 2 ( 1978 ), 999 U.N.T.S. 171 [ hereinafter ICCPR ].
15 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21 , 1965 , S. Exec . Doc. C, 95 - 2 ( 1978 ), 660 U.N.T.S. 195 [ hereinafter ICERD ].
16 ICESCR, supra note 12, art. 12 ( 1 ).
17 Universal Declaration of Human Rights, G.A. Res . 217A, at 76, U.N. GAOR , 3d Sess., 1st plen. mtg., U.N. Doc A /810 (Dec. 12, 1948 ) [hereinafter UDHR]. Accord ICESCR, supra note 12; ICERD, supra note 15 , art. 5 (e)(iv). See also Convention on the Elimination of All Forms of Discrimination Against Women art . 11 ( 1 )(f), 12 , Dec. 18 , 1979 , 1249 U.N.T.S. 513 ; Convention on the Rights of the Child art . 24 , Nov . 20 , 1989 , 1577 U.N. T.S. 3; European Social Charter art. 11 , Oct. 18 , 1961 , Europ. T.S. No. 35; African Charter on Human and Peoples' Rights art. 16 , June 27 , 1981 , 21 I.L.M. 58; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights art . 10 , Nov . 17 , 1988 , O.A.S.T.S. 69 .
18 ICESCR, supra note 12, art. 12 ( 1 ).
19 ICCPR, supra note 14, art. 6 ( 1 ).
20 ICERD, supra note 15, art. 5 (e)(iv).
21 Vienna Convention on the Law of Treaties art. 18, opened for signature May 23 , 1969 , S. Exec. Doc . L, 92 - 1 ( 1971 ), 1155 U.N.T.S. 331 .
22 UDHR, supra note 17, art. 25 ( 1 ).
57 CESCR General Comment 14 , supra note 12, para. 54 .
58 CTR. FOR ECON. AND SOC. RIGHTS , ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A GUIDE TO THE LEGAL FRAMEWORK , http://cesr.org/node/162 (last visited Apr. 23 , 2008 ).
59 CESCR General Comment 14 , supra note 12, para. 12 (b).
60 CESCR General Comment 3, supra note 29, para. 9. Retrogression is always impermissible in the case of the core obligations . CESCR General Comment 14 , supra note 12, para. 48 (“ The adoption of any retrogressive measures incompatible with the core obligations under the right to health . . . constitutes a violation of the right to health .”); see also Jean Connolly Carmalt, Sarah Zaidi, & Alicia Ely Yamin, Entrenched Inequity: Health Care in the United States of America, in THE RIGHT TO HEALTH IN COMPARATIVE PERSPECTIVE (Stephen P . Marks, ed.) (forthcoming) [hereinafter Carmalt et al.].
61 AM. MED . ASS'N, COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS , CODE OF MEDICAL
65 Status of Ratification, ICESCR, supra note 63; OHCHR, Status of Ratification, International Covenant on Civil and Political Rights New York 16 December 1966 , http://www2.ohchr.org/english/bodies/ratification/4.htm (last visited Apr . 23 , 2008 ) [hereinafter Status of Ratification , ICCPR].
66 Status of Ratification, ICCPR, supra note 65. Various arguments exist for the extent of domestic legal obligations associated with the ratification of an international treaty-particularly a human rights treaty-with the advice and consent of the Senate . The discussion here is limited to the legal obligations under international law . See U.S. CONST. art. VI, § 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .”); DUNOFF ET AL., supra note 64 , at 428-441 (discussing the legal impact of U.S. Reservations, Understandings, and Declarations entered in conjunction with ICCPR ratification) .
67 ICCPR, supra note 14, art. 6.
68 Id. at art. 4 ( 2 ). Human Rights Committee [hereinafter HRC], General Comment No. 6: Article 6 (Right to Life), paras. 1-7 , U.N. Doc . HRI/GEN/1/Rev. 7 ( 2004 ) [hereinafter HRC General Comment 6].
The right to life enunciated in article 6 of the Covenant has been dealt with in all State reports. It is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (art. 4). However, the Committee has noted that quite often the information given concerning article 6 was limited to only one or other aspect of this right. It is a right which should not be interpreted narrowly .
69 HRC General Comment 6 , supra note 68, para. 3.
70 ICCPR, supra note 14, arts. 4 , 6 & 14 .
71 HRC General Comment 6, supra note 68, para 5; see also U.S. HUMAN RIGHTS NETWORK, HURRICANE KATRINA AND VIOLATIONS OF ICCPR ARTICLES 6 AND 26: A RESPONSE TO THE THIRD PERIODIC REPORT OF THE UNITED STATES OF AMERICA 3 ( 2005 ), available at http://www2.ohchr.org/english/bodies/hrc/docs/ngos/USHRN.pdf.
72 HRC , Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, United States of America, para . 26, U.N. Doc . CCPR/C/USA/CO/3/Rev.1 ( 2006 ) [hereinafter HRC Concluding Observations] .
73 United States of America, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Third Periodic Reports of States Parties Due in 2003, delivered to the HRC, U .N. Doc. CCPR/C/USA/3 ( 2005 ) [hereinafter US HRC Report] .
74 Id. at paras. 96 - 101 .
75 Id. at paras. 115 - 119 .
76 Id. at para. 98. The Unborn Victims of Violence Act of 2004 criminalizes the act of intentionally killing a fetus when such killing takes place in the course of committing certain federal crimes . 18 U.S.C. § 1841 ( 2004 ).
83 OHCHR , Status of Ratification, International Covenant on the Elimination of All Forms of Racial Discrimination New York, 7 March 1966 , http://www2.ohchr.org/ english/bodies/ratification/2.htm (last visited Apr . 23 , 2008 ).
84 ICERD, supra note 15, art. 1 ( 1 ).
85 Id. at art. 2 ( 1 ) (c); U.N. Committee on the Elimination of Racial Discrimination [hereinafter CERD], General Recommendation XIV on Article 1, Paragraph 1, of the Convention, CERD, 42nd Sess ., U.N. Doc . HRI/GEN/1/Rev.7 206 ( 2004 ) [hereinafter CERD General Recommendation XIV]. The Human Rights Committee has also interpreted the ICCPR to include both de jure and de facto discrimination . See HRC, General Comment 18 : Non-Discrimination , 37th Sess., para. 7, U.N. Doc . HRI/GEN/1/Rev.7 , 147 ( 2004 ).
[ T]he term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, relig86 ICERD, supra note 15, art. 2, para. 1(c) (emphasis added).
87 CERD General Recommendation XIV , supra note 85, para. 1.
Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic principle in the protection of human rights. The Committee wishes to draw the attention of States parties to certain features of the definition of racial discrimination in article 1, paragraph 1, of the ICERD . It is of the opinion that the words “based on” do not bear any meaning different from “on the grounds of” [race] in preambular paragraph 7. A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms[.] This is confirmed by the obligation placed upon States parties by article 2, paragraph 1 (c), to nullify any law or practice which has the effect of creating or perpetuating racial discrimination .
88 Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America, U.N. CERD, 59th Sess ., para. 393, U.N. Doc . A/56/18 ( 2001 ) [hereinafter CERD Concluding Observations] .
89 ICERD, supra note 15, art. 5 (e)(iv).
90 CERD Concluding Observations , supra note 88 , para. 398 .