Do Americans have a right to health care? Some people, more and more as of late, honestly believe that everyone has a right to health care. As we stand on the precipice of one of the greatest rollbacks of public benefits in the history of our country – if not the biggest – the notion that we are all entitled to at least basic care at an affordable price is catching on like wildfire.
But other people will rush to correct those who claim we have any such right. Not so fast, they say. Health care is mentioned nowhere in the Bill of Rights. You can’t find it in the Constitution. If the founders of our great nation had intended for us to have a right to health care, they would have written it down. They didn’t, so we’re out of luck.
This answer is at least partially correct. “Health care” is not mentioned anywhere in the Constitution or the Bill of Rights. Neither is “insurance” nor “medical care.” Article I, Section 8 of the Constitution includes a clause giving Congress the power to spend money for the “general welfare of the United States,” but that’s about as close as it gets.
But does that mean health care isn’t a right? Or, if it isn’t, it can’t someday be recognized as one?
As Louisville civil rights attorney Dan Canon recently told an audience at a political gathering in Southern Indiana, rights are not static. They are fluid. They come into being over time through political will. Things we once thought unspeakable, or perhaps just impractical, such as racial equality under the law, or voting rights for women, or a right to marry, eventually materialized from pipe dreams into rock-solid rights.
How? Through a variety of ways. Some have been recognized by amending the Constitution. Others have been recognized through voting, or through lobbying legislatures; others through the legal system, as judges interpreted the general language of the Constitution to mean things we did not previously acknowledge it to mean.
But let’s go deeper than that. Behind the eventual recognition of every American right were people willing to first declare, “I have a right,” even though they technically did not yet have one. In 1788, James Madison and Thomas Jefferson said Americans had rights to things like free speech and religious free exercise. In 1848, Elizabeth Cady Stanton and Susan B. Anthony said women had a right to vote. And around that same time, Frederick Douglass and John Brown said black slaves had a right to freedom and equality. All of these people said these things before these rights existed in the law. They were, at the time, “wrong.”
Their wrongness was only temporary. Eventually, the rights they claimed became right. Through various forms of struggle, various forms of democratic action, and various forms of social pressure, new rights were recognized where once they seemed inconceivable.
So when someone argues that something like health care is not a right because it’s not in the Bill of Rights or elsewhere in the Constitution, they are both right – technically – but also quite wrong.
First, they are wrong because the Bill of Rights is not a ceiling. It is a floor. Government, both state and federal, may recognize rights beyond those listed anywhere in the Constitution.
The Constitution, after all, can be amended, but that difficult process is not even necessary. Congress could pass a statute that simply says “health care is a right for all Americans” and that would make it a right. Legislation is easier to change or repeal than a constitutional amendment, but that doesn’t make it any less binding. An act of Congress is the law.
The states could amend their own constitutions, or pass their own laws, making health care a right within their own borders. The Kentucky General Assembly could easily declare that its own residents, all four million of us, have a right to health care, and then pass laws to make it so. Just because our current governor and legislative majority would never find the courage or compassion do such a thing doesn’t mean it can’t someday happen.
Second, they are wrong because what matters is the long game. Slavery wasn’t abolished with the wave of a hand. Women’s suffrage didn’t come overnight. The demise of marriage bans – whether race- or sex-based – took decades of political and legal work. Just as opponents of legal abortion didn’t give up after Roe v. Wade in 1974, proponents of a right to health care must not be discouraged by the pedantic naysayers and the cruel-hearted profiteers who will insist, even as they too go bankrupt at the doctor’s office, that such a right simply isn’t practical or is just too idealistic.
Our state and our country suffer from a deficit of political imagination. We have been sedated by the propaganda of pragmatism and austerity to believe that nothing good is possible anymore. That even if – if – health care is a right, we could never afford to provide for each other’s well-being in the way that every other advanced country already does.
Our democratic system means rights can exist if we decide they exist. If enough people say, “I have a right,” then they can have it. So start saying you have a right to health care if you want to have it. If you do, you will.