by Arthur E. Appleton*
The failure of the U.S. Executive Branch to manage the COVID 19 pandemic and other healthcare issues is beyond doubt and need not be reiterated here.
Can we drop the cliches?
It is more than high time that the United States move beyond its cliche-ridden healthcare debate toward a new and more pragmatic doctrine that seeks to achieve positive results for all U.S. citizens.
The old approach of pitting the “free” market against “socialized” medicine hasn’t gotten us anywhere.
Toward a rational healthcare reform agenda
The first step would be for U.S. leaders to learn from the experience of countries that have successfully managed public health in general and the coronavirus in particular.
The second step would be for the executive and legislative branches of the U.S. government to reevaluate the profound market failures that often place citizens’ health at risk and reexamine the appropriate role of each branch of government in seeking solutions.
The third step would be for U.S. courts to take a more progressive view towards constitutional interpretation in a globalized world.
If the United States is to make progress on healthcare reform, the next Congress will need to adopt a pragmatic approach to healthcare issues devoid of incendiary terms such as nationalism, socialism and capitalism.
Democracy and capitalism are not synonymous but can be complementary. To equate the two obscures the fact that democracies around the world have made room for a degree of government intervention to ensure equal access to healthcare.
The starting point of a rational healthcare debate is to determine what tasks are best left to government and what tasks are best left to the private sector.
This will require the U.S. Congress to determine once and for all whether healthcare is either a right for all or a privilege reserved for those of sufficient means.
The odds are that Congress will eventually accept, as have almost all developed countries except the United States, that adequate healthcare is not just a privilege. While the U.S. Patient Protection and Affordable Care Act (the “ACA” or “Obamacare”) was a step in the right direction, nearly 30 million people remain uninsured.
Rational decisions to be made
Once that decision has been made, Congress must determine the financial limit to this presumed right and determine how to distribute the benefits of this right efficiently. Again, the ACA was a move in the right direction, but premiums, co-pays and deductibles remain issues that the government must address.
Regardless of the outcome of the debate on universal healthcare, the U.S. Congress must also examine the extent to which government should encourage, complement or regulate private sector healthcare activity.
U.S. voters generally accept that there will be private sector involvement in the health sector. Other OECD countries have done the same. It is only a question of degree to determine the private sector’s appropriate role.
How much government involvement?
This is always the difficult part of the debate for Americans — determining when government involvement is necessary and at what level.
It is particularly important in the healthcare debate since healthcare is approaching 20% of U.S. GDP, the highest among OECD countries.
Despite the enormous cost to the economy, the results achieved are poorer than those of many OECD countries when measured by such indicators as longevity and infant mortality.
Without government intervention, the private sector has little incentive to offer universal health insurance, stockpile ventilators and personal protective equipment, or maintain a supply of hospital beds for future pandemics.
This isn’t just true for the United States, but most European countries as well. If there was ever any doubt on a joint approach, the COVID 19 crisis has resolved that issue once and for all.
In addition, the private sector often lacks the discipline to limit its profit seeking nature, which is a reality not just in times of national need.
It also lacks the authority to intervene in the event of pandemics. For example, the private sector cannot appropriate money for universal coronavirus and antibody testing.
These shortcomings demonstrate that there is certainly a role for government in healthcare, but this role must be intelligently defined by Congress when it revisits the healthcare debate.
Move beyond “original intent”
The politicization of the U.S. judiciary has also stymied healthcare reform. It is anachronistic to frame the constitutionality of comprehensive U.S. healthcare legislation on the framer’s “original intent.”
This is like addressing a new disease based on an 18th century understanding of medicine. Doctors still use leeches, but not for the diseases treated in 1789.
A contemporary interpretation of the U.S. constitution
Other countries take a more progressive approach towards constitutional interpretation. While judicial predictability is important to maintain constitutional legitimacy, evolutionary interpretation is also important to maintain constitutional relevance.
Original intent should yield more often to evolutionary interpretation, particularly when Congress has acted to address an important issue, such as healthcare.
The 5-4 decision of the U.S. Supreme Court in National Federation of Independent Business v. Sebelius on the constitutionality of the Affordable Care Act illustrates the dangers.
It confirmed both the polarization of the Supreme Court and the harm that a polarized court can inflict when it dissects a law aimed at addressing issues well beyond the presumed intentions of the Founding Fathers.
The rapid spread of COVID 19 in the United States, and continued efforts by Republicans to use the courts to sabotage the ACA, make it inevitable that healthcare will be a dominant issue in the 2020 presidential race.
With its wealth and creativity, there is no reason why the United States cannot provide quality affordable healthcare to all of its residents.
It is time for the United States to learn from the accomplishments of other OECD countries, and continue to construct a model healthcare system of its own.
*an Adjunct Professor of International Law at the Johns Hopkins University School of Advanced International Studies (SAIS-Europe)
**first published in: www.theglobalist.com