Thursday, October 9, 2008

Health, Health Care & Con Law Teaching

Health Care as a possible “right” was one of the subjects broached in Tuesday evening’s Presidential debate.

Here’s part of that “quick discussion:”

Brokaw: Quick discussion. Is health care in America a privilege, a right, or a responsibility?   Sen. McCain?

McCain: I think it's a responsibility, in this respect, in that we should have available and affordable health care to every American citizen, to every family member. And with the plan that -- that I have, that will do that.

But government mandates I -- I'm always a little nervous about. But it is certainly my responsibility. It is certainly small-business people and others, and they understand that responsibility. American citizens understand that. Employers understand that.

But they certainly are a little nervous when Sen. Obama says, if you don't get the health care policy that I think you should have, then you're going to get fined. And, by the way, Sen. Obama has never mentioned how much that fine might be. Perhaps we might find that out tonight.

Obama: Well, why don't -- why don't -- let's talk about this, Tom, because there was just a lot of stuff out there.

Brokaw: Privilege, right or responsibility. Let's start with that.

Obama: Well, I think it should be a right for every American. In a country as wealthy as ours, for us to have people who are going bankrupt because they can't pay their medical bills -- for my mother to die of cancer at the age of 53 and have to spend the last months of her life in the hospital room arguing with insurance companies because they're saying that this may be a pre-existing condition and they don't have to pay her treatment, there's something fundamentally wrong about that.

(excerpted from the CNN transcript, available here).

This was especially interesting to me because of an upcoming event in my constitutional law class scheduled for November 7.  As part of a larger project, I have inaugurated a series of interdisciplinary “conversations” featuring one of our university’s distinguished professors and one of our law school professors.   It is structured as a “public conversation” with the Con Law students and others in attendance.  Last year, our subject was economic justice and the discussants were Frances Fox Piven and Steven Loffredo.  This year, our subject is health and the discussants are Nicholas Freudenberg and Janet Calvo.

I see this question of “health” relating to the constitutional law rights course I am teaching in three ways:

First, there is the question of health care as a “right” that was broached in the Presidential debate.  This is a good opportunity to discuss the intersections of the equal protection and due process clauses.  It is also a good opportunity to surface comparative perspectives with constitutions that do provide for so-called “socio-economic rights” as well as international law documents.

Second, there is the question of government health interests as warranting curtailment of individual rights in either an equal protection or due process context.   The public health perspectives and the individual rights perspectives are often in stark conflict in situations in which “quarantine” is seen as an option, including AIDS in the 1980s, and more recently TB and SARS, as well as threats of future diseases.

Third, there is the question of corporations as “persons” under the Fourteenth Amendment claiming equal protection and due process rights, as well as First Amendment rights.  For health campaigns that include government action as a goal, corporations can challenge the government action.  Again, this illustrates a conflict between public health and constitutional rights perspectives, but also surfaces a fissure between individual rights and corporate rights perspectives within the legal community.  The “tobacco case” presently before the United States Supreme Court, Philip Morris, USA v. Williams, illustrates this issue, albeit obliquely.

In terms of pedagogy, I am just beginning to raise these issues in class.  Before the November 7 event, students will have the “opportunity” (I do make it required), to post specific questions that they would like the discussants to address.  As moderator, I review and categorize these questions and use them to direct the conversation, as well as making sure I mention specific cases we have studied or will study.  I also make it clear that the conversation will be integrated into the final exam.

In addition to the ConLaw class, I use this opportunity to make links with other classes and faculty members.  So, Distinguished Public Health Professor Nicholas Freudenberg will also participate in a round table discussion with community activists arranged by my colleague Jenny Rivera, Director of the law school’s Center for Latino and Latina Rights and Equality (CLORE), a teaching experience in our law school’s Health Law externship clinic facilitated by my colleague Paula Berg, and a lunch with all faculty members to talk about further collaboration between the law school and the university’s new School of Public Health.

If you are interested in attending any of these events and will be in the NYC area on November 7, please contact me: robson@mail.law.cuny.edu.   I know it will be a day of lively discussion - - - especially given the election a few days before.

RR

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Comparative Constitutionalism, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Medical Decisions, Teaching Tips | Permalink

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