Thursday, March 5, 2015

King v. Burwell, Human Rights and the Four Words

Yesterday's Supreme Court argument in King v. Burwell focused on the interpretation of just four words -- "established by the state" -- buried in the mega-statute that is the Affordable Care Act (ACA).   Hanging on the Court's interpretation of this phrase is whether people in states where the federal government runs the health insurance marketplaces are eligible for subsidies that help them afford insurance. In short, the fate of the ACA -- and the health of millions -- is at stake.

While statutory interpretation seems like a quintessential issue for purely domestic legal analysis, it's worth remembering that U.S. health policy is scrutinized on the international stage as well as at home.  This May, the U.S. will send a delegation to Geneva to participate in the Universal Periodic Review (UPR) of U.S. compliance with human rights obligations.  In its February 6 , 2015,  UPR submission, the U.S. touted the positive impacts of the ACA from a human rights perspective, as follows:

    100. The United States has undertaken many initiatives domestically to promote food security     and expand health care. The Affordable Care Act has increased health coverage options and     quality through new consumer protections, the creation of the Health Insurance Marketplaces—a     new means for uninsured people to enroll in health coverage—and additional support for state     Medicaid and Children’s Health Insurance Programs. It requires most health plans to cover ten     categories of essential health benefits, including preventive services, maternity and prenatal care,     hospitalizations, and mental health and substance use disorder services. It also reauthorized the     Indian Healthcare Improvement Act, to address some of the health care access concerns in     indigenous communities.

    101. We are committed to expanding access to health care to all our citizens and as such, have         made efforts to strengthen and protect our social and health care programs: Medicare for the     elderly and disabled, and Medicaid for low-income individuals and families. Under the ACA,     Medicare beneficiaries have saved billions of dollars on prescription drugs and have seen no     increase in rates since 2013. Additionally, Medicare beneficiaries no longer have to pay cost-            sharing for preventive services, and nearly nine million individuals have enrolled in coverage in     state-run Medicaid programs since October 2013.

This submission follows the federal government's many other representations in international fora concerning the benefits of the ACA -- a litany that was set out in a human rights amicus brief filed in the original Supreme Court ACA case. 

While it certainly is not the gold standard of universal health care, the ACA at least represents a step toward progressive realization of the right to health in the U.S., and provides a response to international critics of the U.S. record on economic and social rights.  A crabbed reading of the four words at issue in Burwell v. King will harm millions and set back the cause of more comprehensive health care; it will also expose the U.S. to international criticism, undermine U.S. ability to credibly critique other nations for their ESC rights violations, and hamper U.S. leadership efforts on ESC rights.  It is hard to believe that was the drafters' intent in 2010.

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