The United States Constitution provides U.S. citizens with a range of vital rights and protections. The document provides various levels and branches of government with power to act on certain statutes through policy and enforcing. However, as a document written centuries ago with amendments being added historically, the Constitution does not address many aspects of modern life or society directly, but rather focuses on fundamentals of rights and existence for the government and the people. This paper will seek to examine an issue of equitable access to healthcare in the context of the U.S. Constitution, and the steps that have been taken at the policy level to promote it.
The specific issue that this paper will focus on is the disparity in race in women dying during labor or childbirth, known as maternal mortality. Official statistics indicate that African American women are three times more likely to die during pregnancy, labor, or post-partum period compared to white women (“Health Equity”). Research on the issue reveals that a significant contributing cause of this are social determinants, meaning that racial minorities are less likely to have access to or more likely to experience lower quality of healthcare, face structural racism, and experience implicit bias. These barriers have historically prevented minorities from having fair opportunities to access healthcare (Metcalfe et al. 94). Since maternal mortality is associated with some underlying health issues in the mother or the child, greater access, better quality, and a less racially-based approach in the industry could potentially result in more lives saved. It ultimately becomes a constitutional issue of equitable healthcare, since the disparities are based on primarily on race, or race-associated factors such as the economics of healthcare accessibility.
Part of the Constitution
With the passage of the Affordable Care Act (also known as Obamacare) in 2010, there began a long discussion regarding the Constitutional right to healthcare and the government’s role in providing or mandating healthcare. The U.S. Constitution does not explicitly emphasize healthcare as a right. The Supreme Court interpretations have found that the Constitution provides a right to obtain healthcare at one’s own expense from willing providers, but no ruling to date has found that there is a constitutional right to healthcare that must be provided by the state to those who cannot afford it (Swendiman 2).
However, there is an increasing debate suggesting that the denial of minimal level of healthcare by the federal government is a violation of the equal protection guarantees set forth by the Fourteenth Amendment of the Constitution. Since access to healthcare is denied based on aspects such as affordability, it can be argued that the rights of those who cannot afford are being transgressed. However, the equal protection clause of the Fourteenth Amendment only applies to states, so the equal protection principle to be applicable at the level of the federal government, it would have to be through the Due Process Clause of the Fifth Amendment. Any legal challenge, which none has existed to date, would have the burden of proving that government action places a unique burden on the individual’s fundamental right.
The Due Process Clause offers constitutional protection for rights related to privacy, which under heightened strict scrutiny standard of review have come to include aspects as such procreation, contraception, abortion, and bodily integrity. Since access to healthcare is ultimately dependent on wealth, despite racial factors being involved, and there is a much greater portion of minorities unable to avoid healthcare, the Supreme Court would have to establish wealth as a ‘suspect class.’ The constitutional guarantee of equal protection suggests that people have the “right to be free from invidious discrimination in statutory classifications” (Swendiman 3). Therefore, where the Court will determine the state or government classifications to being suspect, it would use the strict scrutiny standard as it does with race or ethnicity. Wealth has to be evidently established as a suspect classification for the Due Process Clause to apply.
Level and Branch of Government
Due to the nature of the U.S. healthcare system, health equity is a both a national and state level issue. It is best applied, when applied at the federal level and used to make reforms at the state level governments and medical facilities. While there are federal level regulations, states often are the ones implementing them, potentially with their own additions, since the U.S. healthcare system is decentralized. Health equity and improving population health (including that of minorities) depends strongly on reforms in the healthcare payment and delivery system. The healthcare system is held accountable, and within a limited scope addresses elements such as structural racism and social determinants of health through equity-oriented performance measures and providing incentives for safety net and community-based resources (Tripoli et al.).
Although the Constitution does not require this, through the years, Congress has established multiple statutes which seek to define specific statutory rights of individuals to receive health care services from the government. These include Medicare and Medicaid, the closest elements to government-sponsored healthcare in the U.S. A major part of these healthcare entitlement statutes, Congress also provides funding in each allocated budget to finance these services provided under the law. Under the Constitution, the role of Congress is to “make all laws which shall be necessary and proper” to fulfill its purpose one of which is to provide for the “general welfare” of the population. As part of its Constitutionally granted powers, Congress is the branch of government that can regulate interstate commerce, levy taxes, and enact legislation all of which directly impact health insurance and healthcare provision (Swendiman 9).
Human rights, also known as civil rights, are legislation designed to protect individuals from discriminatory practices by governments and institutions. Civil rights legislation impact social determinants of health, as they affect societal distribution of resources that down the line influences health or access to healthcare. The Fourteenth Amendment as well as Title VI of the Civil Rights Act of 1964 are the most prominent example of civil rights laws which have attempted to achieve more equitable outcomes. With the Fourteenth Amendment, there is a history of the Supreme Court has interpreted that it did not apply to discrimination by private entities. Furthermore, it is extremely difficult for the litigant to prove the burden that the government acted with a discriminatory purpose in an equal protection case, which would be most relevant to healthcare equity (Schweikart 235).
Meanwhile, Title VI of the Civil Rights Act was viewed as having strong potential to eradicate racial bias against minorities in healthcare and equalize access. While there have been some successes, as the impact of the law is credited with greatly reducing Black infant mortality rates between 1965 and 2002. However, there are limitations as the government has failed to enforce the law. This has resulted in continuing institutional racism and discrimination, while it also does not have the reach to affect healthcare providers, creating potential for interpersonal racism (Schweikart 236).
The Affordable Care Act passed by the Obama administration is the most recent attempts at major reforms. Many of its statutes focused on increasing healthcare equity, while also seeking to expand services such as Medicare and Medicaid. However, as a result of judicial rulings, it was up to the states to ratify many of the provisions, with only 37 states ending up adopting Medicaid expansion, while many of the states in Southern US (with high proportions of minority populations) failed to do so. Several federal agencies such as the CDC and AHRQ monitor and publicize annual reports on health care disparities and quality, but they have little power other than recommendations for providers to change the evident disparities for minorities. There are also federal initiatives such as Healthy People 2020 which establish goals, including those in equity and maternal mortality to drive health care policy at the state levels and improve indicators, some of which are focused on racially-based improvement to access. This approach offers frameworks and somewhat coordinated strategy at the national level to achieve health equity, offering key opportunities for multisector partnerships at all levels of government and various stakeholders in healthcare (“Achieving Health Equity in the United States”). However, these continue to stand as guidance, and there is no comprehensive policy that addresses healthcare equity at the federal or constitutional level.
The biggest challenge in addressing this issue goes back to the Constitution, where there is no interpretation, from either liberal or conservative camps that the right to healthcare is guaranteed to citizens. Some scholars argue that potentially the judicial branch would be more effective branch in addressing this, but the judiciary can only rule regarding if policy meets the standard of the Constitution, it cannot truly place anything into reality. Therefore, the issue is policy and legislation at the national level, which is the role of Congress. Healthcare as a social service, and one that is highly expensive to fund, has always been a contentious issue.
One of the biggest hurdles that the government is facing are political ideologies. Republicans believe in the private enterprise of healthcare, suggesting it provides the quality and innovation that the American system is known for, regardless that more and more of the population have issues with access. Meanwhile, Democrats are promoting a “Medicare for all” approach of universal healthcare but have problems with justifying or finding the funding or popular support for the concept. A potential solution could be a middle of the aisle approach similar to that of the ACA, but these measures are often criticized as ineffective.
In the end, the guaranteed way of ensuring healthcare equity would be through a dedicated constitutional amendment or widespread recognition that the Fourteenth Amendment applies to healthcare equity. However, the majority of Congress is required for that, and given the highly partisan political climate of the last years, it is unlikely to occur in the near future. At the same time, there are no other alternatives as the national or even state levels to ensure equity in healthcare and access other than small measures via policy and executive orders. For major reforms, major legislation is required in the context of the US healthcare, legal, and governance system.
“Achieving Health Equity in the United States.” American Public Health Association, 2018, Web.
“Health Equity.” CDC, n.d., Web.
Metcalfe, Amy, et al. “Racial Disparities in Comorbidity and Severe Maternal Morbidity/Mortality in the United States: An Analysis of Temporal Trends.” Acta Obstetricia et Gynecologica Scandinavica, vol. 97, no. 1, 2017, pp. 89–96, Web.
Schweikart , Scott J. “How to Apply the Fourteenth Amendment to the Constitution and the Civil Rights Act to Promote Health Equity in the US.” AMA Journal of Ethics, vol. 23, no. 3, 2021, pp. E235-239, Web.
Swendiman, Kathleen S. “Health Care: Constitutional Rights and Legislative Powers.” Congressional Research Service, Web.
Tripoli, Sophia et al. “To Advance Health Equity, Federal Policy Makers Should Build On Lessons From State Medicaid Experiments.” HealthAffairs, 2021, Web.