A Fundamental Right of the Monied to 'Buy Out Of' Universal Health Care Program Restrictions Versus the Moral Claim of Everyone Else to Decent Health Care: An Unremitting Paradox of Health Care Reform?
Arizona Legal Studies Discussion Paper No. 07-09
Journal of Health & Biomedical Law, Vol. 3, No. 1, 2005
99 Pages Posted: 7 Mar 2007
A consensus has emerged that we should move toward and then achieve universal health care coverage. Reaching out to the 47 million presently uninsured will require significant restrictions on care within and without a universal plan. The most direct form of limitation on wealthier individuals seeking care outside a plan - one followed in Canada, a recently vetoed California plan, and in the Clinton plan - is to prohibit supplemental insurance. This article advocates a plan that incorporates such a limitation and associated restrictions. Any such restrictions are likely to be met with constitutional objections. For example, in 2005 Canada's Supreme Court found Quebec's prohibition on supplemental insurance unconstitutional. A finding that there is a fundamental right to purchase care, such as made in a 2006 federal appeals court ruling concerning experimental treatment, augurs problems for an array of health care reforms. This article will establish that although there is a fundamental right to purchase care, it is limited to care that the government has released for general use or sale. It does not include experimental care, treatments (such as marijuana) the government subjects to criminal prohibition, or interventions that the government has determined to be otherwise inefficient or immoral (e.g., transplantation requiring purchased organs). Therefore, although a properly cabined fundamental right to purchase care can limit universal health care reform if it incorporates irrational restrictions or does not deliver what it promises, such a right does not threaten a plan even as restrictive as the one advocated here.
Keywords: universal health care, fundamental rights, constitutional law, rationing, health care reform
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