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Should health care be treated as a human right?

- December 13, 2018
Supporters of single-payer health care march to the Capitol in Sacramento in April 2017. (Rich Pedroncelli/AP)

In recent midterm election exit polls, 41 percent of American voters cited health care as the most important issue facing the country. But beyond agreeing on its importance, Americans haven’t come to a consensus about whether health care is a right, a privilege or a commodity.

That’s in contrast to the global public health community, where most agree that health care should be considered a human right.

To examine what it might look like to treat health care as a human right in United States, let’s consider Colombia, where the constitution lists it as a right. This has powerful symbolic and material consequences — but putting it into practice is quite complicated. So how does it work?

The right to health in Colombia

Colombia’s 1991 constitution not only listed a right to health care, but also established a new legal tool called the tutela that allows citizens to easily make legal claims about their fundamental constitutional rights. Through the tutela, Colombians can present their problems to a judge. The judge then must decide within 10 days whether their fundamental rights have been violated, and if so, assign an appropriate remedy. The Colombian Constitutional Court has recognized the right to health care as a fundamental right.

Colombians have embraced the tutela because it is cheap, quick and easy to use. They made more than 600,000 constitutional rights claims in 2015 alone, with about one-quarter of those claims dealing with health-related issues.

So how is the Colombian health-care system organized? It’s mixed. People who are formally employed get insurance through their employers; others can get insurance with government subsidies. Laws and regulations require public and private insurance companies to cover medications, services and procedures included in an official list of benefits. Today, more than 95 percent of Colombians are covered by health insurance, up from about 25 percent in 1992.

In 2015, the most common health tutela claims had to do with access to treatments (25.6 percent), medications (17.3 percent), prosthetics (11.4 percent) and specialized doctor’s appointments (11.3 percent). Nearly two-thirds of these claims were about items listed as required benefits — in other words, services that all insured citizens should have had access to no matter what, which indicates that significant challenges to accessing health-care goods and services remain. These statistics have been generally consistent over the past 15 years.

In response, prominent tutela decisions have called on Colombia’s congress to make sure that both insurance systems offer the same benefits, cover health-care transportation, give citizens more choices of insurance companies and further regulate insurance companies’ ability to transfer costs to patients.

If they don’t trust the courts, why do citizens file health tutelas?

Colombians report little to no confidence in judges, the formal legal system and their rights. And yet they continue to file tutela claims. I conducted research in Colombia between July 2016 and May 2017 to investigate this, interviewing 90 lawyers, judges, government officials and service providers, as well as 93 everyday citizens from various class backgrounds. I also surveyed 310 Colombians who were in the process of filing tutela claims. I concluded that citizens view the tutela as the only mechanism through which they can make claims to things they care about, such as health care. Colombians turn to the courts because they see no other alternative, not because of their robust belief in the courts.

For example, one very poor woman I interviewed recalled a breathing problem she had several years ago. She thought something was wrong with her trachea but she couldn’t find a doctor who would treat her, as she was informally employed and couldn’t afford expensive private care. So she went to the courthouse and described the problem to a judge; in so doing, she filed a tutela claim. The judge found in her favor: His decision required her subsidized insurance to cover creams and diapers rather than the overnight nurse she had requested to monitor her breathing.

In this case, the plaintiff claimed her rights and received some redress, but the results were hardly ideal. The remedy seemed detached from her problem: What good would diapers and creams do for a breathing problem? This is not surprising. Judges must decide tutela claims before doing their other work; they adjudicate a wide range of issues, from disputes between neighbors to unlawful dismissals at work, regardless of their area of expertise.

While stories like these are not uncommon, the tutela does lead to better access to health-care goods and services for some citizens. Certainly, though, the system could be improved. Judges need more expertise related to the tutela specifically, and the caseload is overwhelming. Still, Colombians have few other options. As another interviewee explained:

Before the tutela, there was nothing one could do. It was necessary to wait for a politician to be elected, and if he cared about that community, wait for him to intervene in some way. Not now. Now, an individual, a single person, can file a complaint with the tutela.

What does this all mean for the United States?

Although the United States does not, more than 130 countries recognize a constitutional right to health care. That’s true across many different health-care systems, some nationalized and some mixed public-private systems. While tutelas may be too far from the American experience, other countries’ models are useful to consider.

Colombia’s experience shows that health care can fruitfully be recognized as a human right, but only to the extent that this recognition is accompanied by political commitment and institutional changes that allow citizens to make concrete claims to their right to health care.

Whitney K. Taylor is a PhD candidate in government at Cornell University.

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