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The Right to Healthcare: A Comparison between the Canadian and the American Health Care Systems

By: Sophie Lemieux, for the Association of Law, Medicine and Biology

The United States in 2017 saw 28.5 million people (8.8 % of the American population) who did not have health insurance. Health insurance in the United States is either mediated by a private form of insurance or by employer based coverage. This is the case even though the Fourteenth Amendment of the U.S. Constitution states that “[n]o State shall deprive any person of life, liberty or property” . It is our opinion that the right to health or the right to healthcare is inherent to the right to life and includes a variety of positive obligations for States. According to the Office of the High Commissioner of the United Nations, “[t]he right to health is a fundamental art of our human rights and of our understanding of a life in dignity.”

The Declaration of Independence of the United States reads as follows: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” For Americans to be free and pursue happiness, they require a decent quality of life. To obtain that, they require access to health care. “You [indeed] cannot have liberty or happiness without good health.” The protection of life is supposed to be one of the main functions of the government and this includes a positive obligation of the state to offer basic healthcare to its citizens. The United States is one of the only developed countries in the world that does not provide universal healthcare. According to the Declaration of Independence and the fourteenth amendment of the United States’ Constitution, everyone is entitled to the right to live and should therefore be entitled to the right to basic healthcare. Human rights are inherent to being a human and should be granted to all, without discrimination. This means that simply being born human; we are entitled to these rights. By maintaining a privatized system in the United States, the state discriminates between the wealthy and the less fortunate.

Although the Affordable Care Act would have guaranteed that all Americans are entitled to a basic healthcare insurance, the premiums were too expensive for many individuals. For example, a legal assistant who makes around $1 800 US per month (or $28 000 US per year), the premiums of Affordable Care Act would have been around $250 to $300 monthly . For lower income households, Obamacare would have been unsustainable. Obama was of the mind that believed “there was a fundamental injustice with a country not entitling it’s sick to healthcare due to their inability to pay.” Human rights aren’t granted only to individuals able to afford health insurance. The right to healthcare, as a component of the right to live, should be granted to everyone regardless of their socio-economic level.

The situation is quite different in Canada, where there is a universal healthcare system. Although there is a waiting period to get access to the public health care coverage, those waiting periods are, for most services, relatively short. If an individual wishes to have access to a health care service that is not provided by the state, they can get a private healthcare insurance (some are given access via their employer) for services such as prescription medications, dental care, physiotherapy or prescription eyeglasses. Such services are, in most cases, not covered by the public system.

As most of us are aware, this system also comes with a lot of downsides. Before the Chaoulli decision, there was a Quebec law prohibiting private insurance for publicly insured health services. The patient and his physician, Dr. Chaouilli argued that the provisions of that law were violating the patients’ rights under the Canadian Charter of Rights and Freedom (the “Canadian Charter”) and under the Quebec Charter, as the wait list for a certain hip surgery was extremely long. Patients had to wait several months or even years while in pain. Section 7 of the Canadian Charter states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In this case, the Supreme Court of Canada found that the provisions prohibiting patients to get a private insurance for publicly insured health services violated section 7 of the Canadian Charter. The Court states that: “The purpose of the prohibition on private insurance in s. 11 HOIA and s. 15 HEIA is to preserve the integrity of the public health care system. Preservation of the public plan is a pressing and substantial objective, but there is no proportionality between the measure adopted to attain the objective and the objective itself. While an absolute prohibition on private insurance does have a rational connection with the objective of preserving the public plan, the Attorney General of Quebec has not demonstrated that this measure meets the minimal impairment test.” The violation of section 7 here was also found not to be justifiable under section 1 of the Canadian Charter.

The Court interpreted the right to live as including a right to a certain quality of life. Therefore, the state cannot voluntarily expose the patients to pain by having them wait indefinitely on wait lists. As Canadians we are far from the United States’ patients’ realities. Not only does Canada guarantee free basic healthcare to everyone, but they also guarantee a certain quality of life and cannot make them wait for unreasonable periods on wait lists for procedures their health requires.

It is my opinion that the United States should not wait any longer to implement a universal basic healthcare system. The discrimination the current privatized system creates is unacceptable and violates many Americans’ rights under the Fourteenth Amendment of the United States’ Constitution and under the Declaration of Independence. Healthcare is a right under America’s constitutional legislation.

Finally, it is not that the American legislation doesn’t guarantee a right to healthcare for Americans; it is the political will that is lacking to enforce it. The same could be said for the Canadian situation. The tools are in place for the American government, just like the Canadian one, to take concrete action to implement the right to healthcare.

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