Health Care as a Right: How Health Care Became Accessible

Americans’ right to access health care has been a national debate since 1912 when President Teddy Roosevelt ran on a health insurance platform. After the New Deal and America’s emergence from the social and economic hardships caused by the Great Depression, President Truman pressured Congress in 1945 to take action to develop a national health insurance fund for all Americans.

It wasn’t until 1965 that the “Original Medicare” program was signed into law, covering hospital and general medical care for people over the age of 65 along with a state option for low-income children. The law also required that participating hospitals meet certain minimum health and safety requirements, setting the first standards towards the delivery of quality health care. This was the first step toward entrenching affordable health care that meets a minimum standard for care quality.

The program has been expanded over the years to include individuals under the age of 65 with long-term disabilities (Medicaid), uninsured children whose families earn too much to be eligible for Medicaid, and to cover services and products for a variety of conditions that affect the Medicare and Medicaid populations. The Medicare and Medicaid programs provide health care for approximately 59 million Americans today.

The most significant expansion of health care since the Original Medicare enactment came with the Patient Protection and Affordable Care Act (ACA) in 2010 which created the health insurance market where Americans can apply for and enroll in private health insurance plans. This law allowed the Centers for Medicare & Medicaid Services (CMS) to test models that improve care quality, lower costs, and better align payment systems to support patient-centered practices. The ACA also directed CMS to establish the Hospital Readmission Reduction Program (HRRP) to reduce payments to hospitals with excess readmissions, with the goal to link payment to the quality of hospital care. More than half of Americans under age 65, approximately 158 million people, access health insurance through their employer, while about one-quarter have a plan through the individual insurance market or are enrolled in Medicaid.

The majority of Americans today have an expectation that they can access affordable health care that is delivered with quality in mind. Health care remains a national debate, particularly in relation to the constitutionality of the Affordable Care Act. In an unprecedented move, the Trump Administration has flipped positions moving away from defending the Act.

While courts are not willing to make substantive leaps on how health care is funded and the minimum level of care to which Americans are entitled, Congress has and should set the baseline. This Article examines the implied right to healthcare and how the judiciary and administrative agencies can favor health care as a right.