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Right to health,
a comparative law
perspective
United States of America
STUDY
EPRS | European Parliamentary Research Service
Comparative Law Library Unit
PE 729.407 – May 2022 ENRIGHT TO HEALTH,
A COMPARATIVE-LAW PERSPECTIVE
United States of America
STUDY
May 2022
Abstract
This study forms part of a larger comparative law project which seeks to present the right
to health in a broad range of legal systems around the world. After analysing the legislation
in force and the most relevant case law, the content, limits, and possible evolution of this
right are examined.
The subject of this study is the United States federal legal system.
The United States does not recognize a right to health. Governments are responsible for
providing a healthy environment for individuals who are in their custody, such as prisoners,
but there is no overall recognized right.
The United States is a party to certain international conventions, such as the constitution of
the World Health Organization and the International Convention on the Elimination of All
Forms of Racial Discrimination; however, these instruments play no real role in determining
U.S. domestic health policy. Instead, domestic policy is grounded upon the federal system,
which assigns certain duties to the central government and the state governments. In
addition, individuals have strong rights under the U.S. Constitution, which governments
must respect. Courts must balance these rights against the needs of the public.
EPRS | European Parliamentary Research ServiceStudy
AUTHOR
This study has been written by Mr. James W. Martin, Jr., Senior Legal Information Analyst,
Law Library of Congress, of the United States Library of Congress, at the request of the
“Comparative Law Library” Unit, Directorate-General for Parliamentary Research Services (DG
EPRS), General Secretariat of the European Parliament.
CONTACT PERSON
Prof Dr Ignacio DÍEZ PARRA, Head of the “Comparative Law Library Unit”.
To contact the Unit, please send an email to: EPRS-ComparativeLaw@europarl.europa.eu
LINGUISTIC VERSIONS
Original: EN
This document is available on the internet at: http://www.europarl.europa.eu/thinktank
DISCLAIMER
This document is prepared for, and addressed to, the members and staff of the European
Parliament as background material to assist them in their parliamentary work.
Any opinions expressed in this document are the sole responsibility of the author and do not
necessarily represent the official position of the European Parliament, the Law Library of
Congress, or the Library of Congress.
This document may be reproduced and translated for non-commercial purposes, provided
that the source is acknowledged and the unit responsible is given prior notice and sent a copy
(EPRS-ComparativeLaw@europarl.europa.eu).
Manuscript completed in April 2022.
Brussels © European Union, 2022.
Photo credits: © polack / Adobe Stock.
PE 729.407
Paper ISBN 978-92-846-9437-2 DOI:10.2861/319127 QA-07-22-266-EN-C
PDF: ISBN 978-92-846-9438-9 DOI:10.2861/34483 QA-07-22-266-EN-N
IIRight to health:
United States of America
Table of Contents
List of abbreviations ................................................................................................ VII
Executive summary .................................................................................................. XI
I. Introduction .......................................................................................................1
I.1. Some basic data: the historical dangers to health in the United States and the
impact of the COVID-19 pandemic ...................................................................................... 1
I.2. Brief historical development of the recognition of the right to health in the
American legal order ............................................................................................................... 2
II. Current legal framework .....................................................................................7
II.1. The U.S. Constitution ............................................................................................................... 7
II.2. Statutes........................................................................................................................................ 8
II.2.1. Ius generalis ................................................................................................................... 8
II.2.2. Ius specialis..................................................................................................................... 9
II.2.2.1 Tax policy..................................................................................................... 9
II.2.2.2 Medicare .................................................................................................... 10
II.2.2.3 Medicaid .................................................................................................... 14
II.2.2.4 Consolidated Omnibus Budget Reconciliation Act of 1985......... 16
II.2.2.5 Emergency medical Treatment and Active Labor Act................... 18
II.2.2.6 State Children’s Health Insurance Program...................................... 20
II.2.2.7 Patient protection and Affordable Care Act..................................... 21
II.2.2.8 Right to health for Detained Undocumented Immigrants........... 30
II.2.2.9 Examples of Modern State Statutes Addressing Health ............... 30
II.3. Regulations............................................................................................................................... 33
III. Relevant case law..............................................................................................35
III.1. Instances where a limited right to health has been found.......................................... 35
III.2. The constitutionality of the ACA......................................................................................... 36
IV. The concept of right to health and its current and possible future limits .............39
IV.1. Concept of ”right to health”................................................................................................. 39
IV.2. The contours and limits of the right to health................................................................ 40
IV.2.1. Individual right versus collective right ................................................................ 40
IV.2.2. Right to health and freedom of movement (quarantine, lockdowns, etc.)40
IV.2.3. Right to health and freedom of trade (lockdown of stores, bars, restaurants,
etc.)................................................................................................................................ 43
IV.2.4. Right to health and right to life (abortion, euthanasia, etc.).......................... 44
IV.2.4.1 Abortion..................................................................................................... 44
IV.2.4.2 Euthanasia................................................................................................. 47
IV.2.5. Right to health and right to physical integrity (vaccination obligations, etc.)
........................................................................................................................................ 48
IV.2.6. Right to health and right to privacy (including protection of personal data)
........................................................................................................................................ 50
IV.2.7. Other fundamental rights in conflict.................................................................... 50
IV.3. Exceptions and reasons that would justify giving primacy to the right to health
over other conflicting fundamental rights....................................................................... 50
IV.4. ”Grey areas” with regard to the right to health .............................................................. 50
V. Abuse of the right to health...............................................................................51
VI. Conclusions ......................................................................................................52
VI.1. Current situation..................................................................................................................... 52
IIIStudy
VI.2. Possible approaches to future challenges ....................................................................... 52
List of enacted legislation .........................................................................................53
List of cases ..............................................................................................................57
Bibliography ............................................................................................................58
Consulted online resources.......................................................................................61
List of publications of the Comparative Law Library Unit ...........................................65
IVRight to health:
United States of America
Table of Frames
FRAME 1.....................................................................................................................4
An Act for the Relief of Sick and Disabled Seamen, 1 Stat. 605 §§ 1, 3, 5 (1798).................4
FRAME 2.....................................................................................................................5
An Act Relative to Quarantine, 1 Stat. 474.....................................................................................5
FRAME 3.....................................................................................................................7
Eighth Amendment to the Constitution of the United States .................................................7
Due Process Clause of the Fourteenth Amendment to the Constitution of the United
States .......................................................................................................................................................7
FRAME 4.....................................................................................................................8
Tenth Amendment to the Constitution of the United States ..................................................8
FRAME 5.....................................................................................................................9
26 U.S.C. § 106 (part) ...........................................................................................................................9
FRAME 6.....................................................................................................................9
26 U.S.C. § 162 (part) ...........................................................................................................................9
FRAME 7...................................................................................................................11
42 U.S.C. § 1395c (part).................................................................................................................... 11
FRAME 8...................................................................................................................11
42 U.S.C. § 1395j (part)..................................................................................................................... 11
FRAME 9...................................................................................................................12
42 U.S.C. § 1395w-21 (part)............................................................................................................. 12
FRAME 10.................................................................................................................13
42 U.S.C. § 1395w-101 (part) .......................................................................................................... 13
FRAME 11.................................................................................................................15
42 U.S.C. § 1396d(a) part ................................................................................................................. 15
FRAME 12.................................................................................................................17
29 U.S.C. § 1161.................................................................................................................................. 17
FRAME 13.................................................................................................................17
29 U.S.C. § 1163 (part)...................................................................................................................... 17
FRAME 14.................................................................................................................18
42 U.S.C. § 1395dd(part).................................................................................................................. 18
FRAME 15.................................................................................................................23
42 U.S.C. § 18003 ............................................................................................................................... 23
FRAME 16.................................................................................................................24
42 U.S.C. § 18031(part)..................................................................................................................... 24
FRAME 17.................................................................................................................27
42 U.S.C. § 18022 (part).................................................................................................................... 27
FRAME 18.................................................................................................................35
Estelle v. Gamble, 429 U.S. 97, 104-105 (1976) Excerpt ............................................................ 35
FRAME 19.................................................................................................................35
Estelle v. Gamble, 429 U.S. 97, 106 (1976) Excerpt..................................................................... 35
FRAME 20.................................................................................................................41
8 U.S.C. § 1182(f)................................................................................................................................ 41
VStudy
FRAME 21.................................................................................................................43
New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ....................................................................... 43
VIRight to health:
United States of America
List of abbreviations ∗
§ Section “§§” is an abbreviation for “sections.”
ACA Patient Protection and Affordable Care Act
Am. Law Inst. American Law Institute
Art. Article
CDC United States Centers for Disease Control
CFR Code of Federal Regulations
Ch. Chapter
Cl. Clause
CMS United States Centers for Medicare and Medicaid Services
COBRA Consolidated Omnibus Budget Reconciliation Act of 1985
Cong. Congress
Cong. Rsch Serv. United States Congressional Research Service
CONST. United States Constitution
Council State Gov’ts Council of State Governments
COVID-19 Coronavirus Disease 2019
Ctrs. Centers
Dep’t Homeland Sec. United States Department of Homeland Security
Dep’t. Department
Dept. Health & Hum. Serv. United States Department of Health and Human Services
EPA United States Environmental Protection Agency
ERISA Employee Retirement Income Security Act of 1974
Exec. Executive
F. Supp. West’s Federal Supplement
∗
Abbreviations are taken from The Bluebook: A Uniform System of Citation (21st ed. 2020). The Bluebook is an
authoritative citation manual used in legal writing in the United States.
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FDA United States Food and Drug Administration
Fed. Reg. Federal Register
Fla. Florida
FPL Federal Poverty Level
HIV Human Immunodeficiency Virus
I.R.S. United States Internal Revenue Service
Infra Below
J. Journal
KFF Kaiser Family Foundation
L. Law
Leg. Legislature
Lib. Cong. United States Library of Congress
Mass. Massachusetts
Md. Maryland
Miss. Code Ann. Mississippi Code Annotated
N.D. St. U. North Dakota State University
NCLS National Conference of State Legislatures
NFIB National Federation of Independent Businesses
NIH United States National Institutes of Health
NPR National Public Radio
Off Office
Or. Rev. Stat. Oregon Revised Statutes
OSHA United States Occupational Safety and Health Administration
Pol’y Policy
Pub. L. Public Law
R.I. Rhode Island
VIIIRight to health:
United States of America
Reg. Regular
S.B. Senate bill
S.Ct. West’s Supreme Court Reporter
S.J.Res. Senate Joint Resolution
Sch. School
SCHIP State Children’s Health Insurance Program
Stat. United States Statutes at Large, where laws passed by Congress
are first published
Supra Above
T. Title
Temp. Temple University
Tex. Texas
U.S. United States. Also the abbreviation for United States Reports,
the official reporter of decisions of the United States Supreme
Court
U.S.C. United States Code
USPHS United States Public Health Service
Wash. Post Washington Post
WL Westlaw
IXStudy
XRight to health:
United States of America
Executive summary
This report discusses how the United States of America has treated concepts of the right to
health in both statutory and case law. The concept is not one that is directly guaranteed under
federal constitutional law, although some rights that might be considered to be related to a
right to health have been accepted by U.S. courts.
In addition, the report discusses state and federal treatments of specific problems related to
the right to health such as quarantine, mandates for vaccinations, abortion, and euthanasia.
Even before the beginning of the COVID-19 pandemic in early 2020, some of these issues
remained unsettled; recent developments indicate that further changes may occur within the
next eight to 14 months.
XIStudy
The right to health:
United States of America
I. Introduction
Until the twentieth century, constitutional and legal issues concerned with health were
primarily the responsibility of the states, and where the states allowed, localities. The federal
role was seen as distant and drawn directly from the specific powers provided to the federal
government in the United States Constitution.
Even before the American War for Independence, however, the colonies and their towns
recognized the need to promote health through the exercise of police powers. Quarantine
laws, for instance, are almost as old as the first English colonies in what would become the
United States.
Support for access to medical care would only gradually develop over the centuries. Although
the federal government early recognized responsibility for the care of disabled sailors and
soldiers, no overall federal initiative was even suggested before the end of the nineteenth
century. Until after World War II, no real attempt was made to adopt a scheme for national
health insurance, let alone any system of national health care such as the British National
Health Service. A series of gradual, but nonetheless major, reforms would be enacted
beginning with the creation of Medicare and Medicaid in the mid-1960s. Even today, though,
the health care system in the United States might be thought of as disconnected and
even piecemeal.
I.1. Some basic data: the historical dangers to health in the United
States and the impact of the COVID-19 pandemic
There have been a few major health crises during the first 400 years of European settlement in
what is now the United States. The most prevalent have been occasional epidemics of
communicable diseases and sickness caused by the lack of public infrastructure. Occupation-
related diseases have also been a recurring problem.
Before the outbreak of the COVID-19 pandemic, the last major epidemics that the United
States faced were caused by variants of influenza. The major flu pandemic in recent history
was the 1918-1920 outbreak, in which an estimated 675,000 Americans died. 1 Major flu
epidemics in 1957 and 1968 each resulted in over 100,000 deaths in the United States. 2
In addition to recent flu epidemics, the United States saw several epidemics of cholera in the
nineteenth century, beginning in 1832. The last major outbreak of cholera was in the early
twentieth century. As cholera was not native to the continental United States, there were
attempts to limit its spread by imposing quarantines on vessels arriving from locations known
to have the disease. Other diseases that caused epidemics included smallpox, yellow fever,
and typhoid. Statistics show that over 10,000 deaths annually occurred from typhoid and
diphtheria until the second decade of the twentieth century. 3 In addition, the HIV/AIDS
epidemic of the late twentieth century resulted in over one million deaths in the United
1
See, e. g., Influenza (flu): History of 1918 Flu Pandemic, US CENTERS FOR DISEASE CONTROL AND PREVENTION [CDC],
https://www.cdc.gov/flu/pandemic-resources/1918-commemoration/1918-pandemic-history.htm.
2
See, e. g., Influenza (flu): Influenza Historic Timeline, CDC, https://www.cdc.gov/flu/pandemic-resource s/
pandemic-timeline-1930-and-beyond.htm.
3
BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, H.R. DOC NO. 93-78, Historical Statistics of the United States: Colonial
times to 1970, Ser. B 149-166 (Bicentennial ed. 1975), 1-11-b-vital stat.pdf (census.gov).
1Study
States. 4 The epidemic led to new federal health programs such as the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990. 5
Official responses to the COVID-19 pandemic began at the end of January 2020, when the
Centers for Disease Control announced that it would start to screen passengers arriving from
Wuhan, China, at three U.S. international airports.6 On January 31, 2020, the Trump
Administration declared a public health emergency due to COVID-19. 7 The declaration was
issued under section 319 of the Public Health Services Act of 1944. 8 On January 31, 2020, the
administration issued a presidential proclamation restricting entry of passengers from China,
effective on February 2, 2020. 9 During the remainder of the winter and spring, state and federal
governments would take steps to respond to the pandemic as it grew in the United States.
Governments in over 45 states and territories would issue advisories or orders restricting
unnecessary movement outside of the home. These were lifted when case numbers
decreased. The administration set up Operation Warp Speed for the development of vaccines
to counter COVID-19 using federal and private funding. In December 2020, the first such
vaccine, the Pfizer-BioNTech, was approved for emergency use.10 The Moderna and Johnson
and Johnson vaccines were later authorized for emergency use. In August 2021, the FDA
approved the Pfizer-BioNTech vaccine for full use. The upturn in cases in early 2021 led to a
renewed interest in attempting to vaccinate a sufficient percentage of Americans and to steps
that would limit the spread of the disease. In September 2021, President Joseph R. Biden
issued executive orders requiring federal employees to be fully vaccinated against COVID;
employees of federal contractors were covered in another order.
At the end of August 2021, the United States experienced a surge in reported cases and deaths
from the Delta variant of COVID-19. As of February 23, 2022, almost 940,000 individuals had
died from COVID-19 in the United States. 11
I.2. Brief historical development of the recognition of the right to
health in the American legal order
As a large country with an advanced economy, the United States has considerable geographic
and demographic variations. During its history, most policies concerning health were carried
out at the state and local level, although the federal government did initiate policies early on
to address health-related matters in specific areas such as foreign commerce and immigration.
In 1798, Congress passed a law to provide medical and hospital care to American seamen, An
4
See, e.g., HIV: Basic Statistics, CDC, https://www.cdc.gov/hiv/basics/statistics.html.
5
Pub. L. No. 101-381, 104 Stat. 576 (codified as amended in scattered sections of 42 U.S.C.).
6
Press Release, CDC, “Public Health Screening to Begin at 3 U.S. Airports for 2019 Novel Coronavirus (”2019-n-
CoV”)”, https://www.cdc.gov/media/releases/2020/p0117-coronavirus-screening.html.
7
See, e.g., Determination that a Public Health Emergency Exists, U.S. Dep’t Health & Hum. Servs.,
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
8
Codified at 42 USC § 247d.
9
Proclamation No. 9,984, 85 Fed. Reg. 6,709 (Feb. 5, 2020).
10
News Release, U.S. Food and Drug Administration, “FDA Takes Key Action in Fight Against COVID-19 by Issuing
Emergency Use Authorization for First COVID-19 Vaccine” (Dec. 11, 2020), https://www.fda.gov/ne ws-
events/press-announcements/fda-takes-key-action-fight-against -covid-19-issuing-emergency-use-
authorization-first-covid-19.
11
See, e.g., COVID-19: COVID Data Tracker Weekly Review, CDC, https://www.cdc.gov/coronavirus/201 9 -
ncov/covid-data/covidview/index.html.
2The right to health:
United States of America
Act for the Relief of Sick and Disabled Seamen. 12 The constitutional basis for this legislation is
found in the power of Congress “to regulate commerce with foreign nations, and among the
several states, and with the Indian tribes.” 13 The legislation provided for the creation of marine
hospitals that would be administered by the federal government for over 110 years. The
hospitals were located at prominent seaports, such as New Orleans, and major inland ports
such as Louisville, Kentucky. Support for the service was provided by a monthly tax that sailors
paid. The withholding of taxes was later abolished, and the expenditures for operating the
hospitals were covered from the government’s general fund. In 1870, Congress passed
legislation to place the loosely organized network of underfunded marine hospitals under the
supervision of the new Marine Hospital Service.14 The new service, then located in the Treasury
Department, was placed under the direction of a Supervising Surgeon General; the title would
later be changed to Surgeon General. This agency in turn would later become part of the
United States Public Health Service (USPHS) when it was authorized in 1912. 15
As it evolved, the Marine Hospital Service took on additional duties, including basic research
on matters of disease and public health. In 1887, a Laboratory of Hygiene was organized in the
service. 16 The laboratory was the forerunner of the National Institutes of Health (NIH), which is
the major recipient of federal support for medical research in the United States, and which also
awards significant funding for non-federally conducted research.17 In the first decades of the
twentieth century, the authority of the new USPHS was extended to include investigating
typhoid outbreaks in interstate waterways and the administration of the country’s
leprosariums. America’s entry into World War I in 1917, and the later global flu pandemic, saw
the USPHS in a more active role in tracking and fighting diseases.18 In 1944, the current laws
concerning public health were reauthorized as the Public Health Services Act.
The 90 years from the end of World War I to passage of the Patient Protection and Affordable
Care Act would see the development of national laws and policies designed to provide access
to health care and protect health-related rights. During the twentieth century, proposals were
made for national health insurance, but none was adopted. Private insurance came to be the
preferred method for providing health security. This was supported by the decision of the
government to exclude fringe benefits, such as health insurance plans, from mandatory wage
controls during World War II. 19 In addition, Congress allowed, for purposes of income tax
calculation, the deduction from gross income of health insurance premiums paid by
employers for their employees. The value of such a plan was also excluded from the gross
income of the employee. Individuals who were not offered a health plan by their employer
could attempt to purchase a policy through an insurance company. Many such individuals
were unable to acquire coverage, as such policies were often expensive, or had restrictions on
who would be eligible for coverage. Beginning in the 1960s, a series of incrementally adopted
federal laws were passed to address the health care needs of Americans who might not be
12
Act of July 16, 1798, ch. 77, 1 Stat. 605.
13
U.S. CONST. art. I, § 8, cl. 3.
14
Act of June 29, 1870, ch. 169, 16 Stat. 169.
15
Act of August 14, 1912, ch. 288, 39 Stat. 309.
16
Records of the National Institutes of Health [NIH], Nat’l Archives & Records Admin.,
https://www.archives.gov/research/guide-fed-records/groups/443.html.
17
Budget: What We Do, NIH, https://www.nih.gov/about-nih/what-we-do/budget.
18
DUFFY, J.: The Sanitarians: A History of American Public Health 242-44 (1990).
19
CQ PRESS: Guide to U.S. Health and Health Care Policy 14 (Thomas R. Oliver ed., 2014).
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covered by an employer-provided plan. In 1965, the Social Security Act was amended to create
two federally funded insurance programs, Medicare and Medicaid. 20 Medicare provided
hospitalization and medical insurance for individuals aged 65 and over, while Medicaid
provided similar insurance for the indigent and those who are disabled but not covered by
Social Security. Medicare is entirely administered by the federal government, while Medicaid
is administered by state governments under federal guidance and receives both state and
federal funding. In 1997, Congress enacted the State Children’s Health Insurance Plan (SCHIP),
an extension of the Medicaid program to children of working families with low incomes who
otherwise would not be eligible for Medicaid. In 2010, Congress passed the Patient Protection
and Affordable Care Act (ACA), which provided for the extension of Medicaid eligibility in
addition to prohibiting several practices by commercial insurance carriers. The ACA also made
it possible for more individuals to purchase insurance directly through state and federally
administered pools. 21
There was also an early recognition in both state and federal laws that certain steps could be
taken by governments to secure the health of the overall community, specifically orders of
quarantine, but later laws were passed that also required vaccination against smallpox. As
early as 1648, the General Court of Massachusetts Bay Colony enacted the first quarantine act.
The act was designed to limit the spread of yellow fever by requiring the quarantine of ships
arriving from West Indies locations where the disease was prevalent. The same colony also
adopted laws to limit the spread of smallpox in 1742. 22 Other localities and states would adopt
quarantine laws, most often in port cities. The first federal quarantine law, dating from 1796,
empowered the president to direct revenue agents to assist states in enforcing their local
quarantine laws. 23 However, it did not create a substantive federal quarantine act; that would
come only much later. After the end of the Civil War in 1865, a series of yellow fever epidemics
finally led Congress to adopt substantive federal quarantine legislation in 1878. 24 During the
next 40 years, states would cede more of the responsibility for enforcing external quarantines
to the federal government.25 In 1944, a quarantine provision was added by sections 361 and
362 of the Public Health Services Act. 26 The Public Health Service Act codified current federal
legislation in the area, and as amended, it is the source of most of today’s federal programs
and laws outside of the areas of Medicare, Medicaid, SCHIP, and tax provisions.
FRAME 1
An Act for the Relief of Sick and Disabled Seamen, 1 Stat. 605 §§ 1, 3, 5 (1798)
Sec. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled, That from and after the first day of September next, the master or owner of every ship or vessel of
the United States, arriving from a foreign port into any port of the United States, shall, before such ship or
vessel shall be admitted to an entry, render to the collector a true account of the number of seamen, that
shall have been employed on board such vessel since she was last entered at any port in the United States,-
20
Pub. L. No. 89-97, 79 Stat. 286 (codified as amended in scattered sections of 42 U.S.C.).
21
Pub. L. No. 111-148, 124 Stat. 119 (as amended in scattered sections of 26, 29, and 42 U.S.C.).
22
TOBEY, J.A.: Public Health Law 10-11 (3rd ed. 1947).
23
Act of May 27, 1796, ch. 31, 1 Stat. 474.
24
Act of Apr. 29, 1878, ch. 66, 20 Stat. 37.
25
JAIKUMAR, A.K.: Note, “Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine
After NFIB v. Sebelius”, 114 Colum. L. Rev. 677, 690-93 (2014).
26
Act of July 1, 1944, ch. 373, 58 Stat. 682, 703-704 (codified as amended at 42 U.S.C. §§ 264-265).
4The right to health:
United States of America
and shall pay to the said collector,at the rate of twentycents per month for every seaman so employed;which
sum he is hereby authorized to retain out of the wages of such seamen.
Sec. 2. And be it further enacted, That it shall be the duty of the several collectors to make a quarterly return
of the sums collected by them respectively, by virtue of this act, to the Secretary of the Treasury; and the
President of the United States is hereby authorized, out of the same, to provide for the temporary reliefand
maintenance of sick or disabled seamen, in the hospitals or other proper institutions now established in the
several ports of the United States, or, in ports where no such institutions exist, then in such other manner as
he shall direct: Provided, that the monies collected in any one district, shall be expended within the same.
Sec. 5. And be it further enacted, That the President of the United States be, and he is hereby authorized to
nominate and appoint, in such ports of the United States, as he may think proper, one or more persons, to be
called directors of the marine hospital of the United States, whose duty it shall be to direct the expenditure of
the fund assigned for their respective ports, according to the third section of this act; to provide for the
accommodation of sick and disabled seamen, under such general instructions as shall be given by the
President of the United States, for that purpose, and also subject to the like general instructions, to direct and
govern such hospitals as the President may direct to be built in the respective ports: andthat the saiddirectors
shall hold their offices during the pleasure of the President, who is authorized to fill up all vacancies that may
be occasioned by the death or removal of any of the persons so to be appointed. And the said directors shall
render an account of the monies received and expended by them, once in every quarter of a year, to the
Secretary of the Treasury, or such other person as the President shall direct; but no other allowance or
compensation shall be made to the said directors, except the payment of such expenses as they may incur in
the actual discharge of the duties required by this act.
FRAME 2
An Act Relative to Quarantine, 1 Stat. 474
Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled, That the President of the United States be, and he is hereby authorized, to direct the revenue
officers and the officers commanding forts and revenue cutters, to aid in the execution of quarantine, and
also in the execution of the health laws of the states, respectively, in such manner as may to him
appear necessary.
Shortly after the end of World War II, Congress passed the Hospital Survey and Construction
Act of 1946 to provide grants and loans to states and localities to build hospitals in rural
areas. 27 The law, popularly known as Hill-Burton for its sponsors, provided congressional
grants for hospital construction for over 20 years. Part of the legislation required that such
hospitals provide a portion of their services to individuals who were unable to pay the full price
of their treatment. Between 1946 and 1968, the act provided over three billion dollars in
support of the construction of hospitals in under-populated areas. 28 Although the act required
recipients of federal grants or loans to devote a certain percentage of care to individuals who
would be unable to pay the full cost of treatment, the provisions were not addressed until the
early 1970s, when a series of lawsuits led the Department of Health, Education, and Welfare
(the predecessor agency of the Department of Health and Human Services) to examine the
issue. 29 The section imposing the requirement has been amended since 1946, and it is still in
27
Act of Aug. 13, 1946, ch. 958 Stat. 1040.
28
STEVENS, R. & STEVENS, R.: Welfare Medicine in America: A Case Study of Medicaid 43 (1974).
29
ROSENBLATT, R.E.: “Health Care Reform and Administrative Law; A Structural Approach”, 88 Yale L. J. 243, 268-79
(1978), https://openyls.law.yale.edu/bitstream/handle/20.500.13051/15863/18_88YaleLJ243_December1978.
pdf?sequence=2.
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effect, although much of the scope of the language providing for access to hospital care has
been absorbed by regulations issued under the authority of Medicare and more recent laws.30
An early federal initiative was the passage of an Act to Encourage Vaccinations in 1813, 31 a law
that created a means for the federal government to provide free samples of cowpox to be used
to vaccinate individuals against smallpox. 32 This act was repealed in 1822 after a federal agent
accidently mailed a sample of live smallpox that resulted in an outbreak of the disease. 33
30
42 U.S.C. 291c(e).
31
Act of Feb 27, 1813, ch. 37, 2 Stat. 806.
32
See, e.g., SINGLA , R.L.: “Missed Opportunities: The Vaccine Act of 1813” (May 1, 1998) (paper submitted in
fulfillment of third year writing requirement, Harvard L. Sch.), https://dash.harvard.edu/bitstream/handl e /
1/10015266/rsingla.pdf?sequence=1&isAllowed=y.
33
Act of May 4, 1822, ch. 50, 3 Stat. 677.
6The right to health:
United States of America
II. Current legal framework
II.1. The U.S. Constitution
The US Constitution as ratified in 1788 is silent on most economic and social rights, including
the right to health. A right to health is also not enumerated in any of the 27 amendments that
have been adopted since ratification. This does not mean that Americans have no
constitutionally protected health rights; instead, such rights are under the aegis of other
provisions of the Constitution. In addition, the Constitution provides the federal government
with enormous powers to shape and regulate the national economy through the enumerated
powers to raise taxes and to regulate interstate and foreign commerce. These powers have
been drawn upon to create programs that provide Americans with the means to access
providers of health services by providing publicly supported health insurance or creating tax
and fiscal policies that support the purchase of health insurance plans from private vendors.
In addition, the states, under the Tenth Amendment’s “reserved powers,” have authority to
create health services for their citizens.
One area where a right to health has been found by courts concerns individuals who, due to
involuntary confinement, are dependent upon the state to secure their health and safety. The
Eighth Amendment to the Constitution prohibits the use of “cruel and unusual punishment.”
Although the provisions of the amendment originally applied only to the federal government,
under the incorporation doctrine of the Fourteenth Amendment, the provisions now also
apply to the states. The U.S. Supreme Court formulated the standards for the minimum health
services that incarcerated individuals must receive in a 1976 opinion, Estelle v. Gamble, 34
discussed below in Section III.1.1. This standard also applies for migrants who are in detention
for being in the United States in violation of immigration laws. For individuals who are
involuntarily confined by a civil process, a right to health is found in the substantive rights of
the Due Process Clause of the Fourteenth Amendment. The Supreme Court announced this
doctrine in a 1982 opinion, Youngberg v. Romero, 35 discussed below in Section III.1.1.
FRAME 3
Eighth Amendment to the Constitution of the United States
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Due Process Clause of the Fourteenth Amendment to the Constitution of the United States
[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .
Although there is little in the Constitution to directly support a right to health, the states,
through the operation of the Tenth Amendment, have powers to create such rights. Some
states have taken this initiative. In addition, almost all states and many municipalities had
established health departments to implement public health policies by 1930. Some of these
policies will be briefly reviewed below in Section II.3.
34
429 U.S. 97 (1976).
35
457 U.S. 307 (1982).
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FRAME 4
Tenth Amendment to the Constitution of the United States
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
II.2. Statutes
In the nineteenth century, the federal government’s involvement in health was limited to
providing circumscribed services for members of the military, merchant seamen, veterans, and
Native American who lived on reservations. No overall plan to provide a right to health would
be suggested until the early twentieth century, when proposals for state legislation for health
insurance were suggested by the American Association for Labor Legislation in 1912. The
association aided in the drafting of health insurance bills in fifteen states. 36 The proposals,
while discussed in several states, were not adopted.37
In this early vacuum, some services were provided to employees by companies. In industries
that had a high level of occupation-related health risk, such as railroads, mining, and
lumbering, companies that wanted to provide health care would either hire doctors and build
medical facilities, or contract with local providers. It is estimated that, by 1930, over one million
Americans were covered by medical services provided or funded by employers. 38
II.2.1. Ius generalis
In the United States, the primary federal law governing health is the Public Health Service Act
of 1944, as amended. 39 The act is broad reaching and includes agencies such as the USPHS and
NIH, laws authorizing specific research and grant programs, funding for health care education,
and specific regulatory powers such as the Quarantine Act and provisions for declaring a
public health emergency.40
The last compilation of the law was published under the authority of the House Committee on
Energy and Commerce during the 111th Congress in 2011. The text was over 1,600 pages long;
since then additional changes have been adopted. This law does not include separate
functions of the federal government that touch upon the topic of health, such as the Medicare
and Medicaid insurance programs; the approval of drugs and medical devices, which is
covered by the Federal Food, Drug and Cosmetics Act;41 or the providing of health services to
individuals who are in the military, veterans, or individuals eligible for treatment under the
Snyder Act, 42 which is the authority for the Indian Health Service, now a part of the Public
Health Service. 43
36
STEVENS & STEVENS: supra note 28, at 9 (1974).
37
STARR, P.: The Social Transformation of American Medicine 200-02 (2nd ed. 2017).
38
Id. at 295-98.
39
Act of July 1, 1944, ch. 373, 58 Stat. 682 (codified as amended at 42 U.S.C. § 201 et seq.).
40
A compiled version of the text of the act, as amended through May 26, 2021, can be found at
https://www.govinfo.gov/content/pkg/COMPS-8773/pdf/COMPS-8773.pdf.
41
Act of June 25, 1938, ch. 675, 52 Stat. 1040 (specifically codified as amended at 21 U.S.C §§ 351-360ddd-2).
42
Act of Nov. 2, 1921, ch. 115 42 Stat. 208.
43
25 U.S.C. § 1661 et seq.
8The right to health:
United States of America
II.2.2. Ius specialis
As mentioned above, many Americans receive health insurance as part of a package of
employment-related benefits. Specific federal legislation has been adopted governing how
these plans are counted as income and what laws govern their administration.
There are several specific federal programs that provide access to health care for distinct
groups. The main programs are Medicare for the aged and disabled who are eligible for Social
Security and Medicaid for the indigent. Other legislation has been enacted to expand access
to Medicaid, to provide access under specific situations to a minimum level of care, and to
prevent the loss of health insurance due to a change in one’s employment status. A general
discussion of each the main statutes follows. In addition, at the end of this section, a general
discussion of the rights of undocumented migrants detained under federal law is reviewed.
II.2.2.1 Tax policy
As previously mentioned, premiums for health insurance plans paid for by employers are
generally excluded from the gross income of the employee for taxation purposes. The specific
statute is 26 U.S.C. § 106 (2018), part of which appears below.
FRAME 5
26 U.S.C. § 106 (part)
§ 106. Contributions by employer to accident and health plans
(a) General rule
Except as otherwise provided in this section, gross income of an employee does not include employer-
provided coverage under an accident or health plan.
Any payment of premiums by an employee is not deductible from an individual’s taxable
income unless total medical expenses, including premiums, exceeds 7.5 percent of the
taxpayer’s adjusted gross income. 44
Employers are able to deduct their share of the employee’s health insurance premium, up to
a certain level of compensation, from their gross income. The provision for this is found in 26
U.S.C. § 162 (2018), part of which appears below.
FRAME 6
26 U.S.C. § 162 (part)
Trade or business expenses
(a) In general
There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the
taxable year in carrying on any trade or business, including-
(1) a reasonable allowance for salaries or other compensation for personal services actually rendered;
Self-employed individuals are allowed to take a deduction for premiums paid for themselves
and dependents under provisions of subsection (l) of this section.
44
26 U.S.C. § 213.
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Other tax provisions concerning health insurance premiums will be reviewed in the discussion
of the Affordable Care Act in Section 1.4.2.7, infra.
II.2.2.2 Medicare
The Medicare program provides health and hospitalization insurance benefits for seniors age
65 and older. It also covers individuals of any age who receive Social Security Disability
Insurance payments, and individuals of any age who are end-stage renal patients or who have
Amyotrophic Lateral Sclerosis. Initially taking effect in 1966, it is an amendment to the Social
Security Act of 1935. 45
In the 1950s, it became apparent that, while many workers and their families were covered by
employer-provided health insurance, this was not the case for individuals over age 65 who
were no longer employed and were relying on fixed Social Security benefits and private
pensions for their incomes. Although such individuals could attempt to purchase individual
policies, they often faced burdens such as mandatory waiting periods or restrictions on
insuring against claims arising from pre-existing conditions.
Interest in addressing this problem started in the late 1950s. In 1960, Congress passed federal
legislation to assist indigent seniors without insurance by providing grants to states. The
program, however, was not a success and did not satisfy supporters of efforts for reform.
During the Kennedy administration, a proposal was put forth for a hospitalization and
outpatient insurance program for seniors, but the effort failed. After the 1964 election,
however, President Lyndon B. Johnson was able, with the assistance of overwhelming
Democratic majorities in both houses of Congress, to pass legislation providing such
services. 46 The law took effect on January 1, 1966.
As passed, Medicare consisted of two parts: a part providing coverage for hospitalization
expenses (Part A), 47 and a part covering outpatient expenses (Part B). 48 Part A covers mainly
inpatient care; 49 Part B, outpatient charges such as office and clinical visits. 50 The plans are not
comprehensive; beneficiaries are expected to pay a percentage of the charge for services
received. The plans also limit what fees providers may charge and for what services.
Part A of the program is funded through payroll taxes with no additional charge to the
enrollee, 51 while Part B is partially funded through monthly premiums that are charged to the
participant. 52 Usually the premium is withheld from the enrollee’s Social Security benefits, but
if the individual does not receive benefits, he or she makes premium payments to the
government. If an individual is indigent, premiums can be covered through Medicaid.
Participation in Part B is not required, although individuals who fail to enroll at their earliest
45
Act of Aug. 14, 1935, ch. 531, 49 Stat. 620.
46
O BERLANDER, J.: The Political Life of Medicare 27-31 (2003).
47
42 U.S.C. § 1395c.
48
42 U.S.C. § 1395j.
49
What Medicare Covers: What Part A Covers, Medicare.gov, https://www.medicare.gov/what-medicar e -
covers/what-part-a-covers.
50
What Medicare Covers: What Part B Covers, Medicare.gov, https://www.medicare.gov/what-medicar e -
covers/what-part-b-covers.
51
42 U.S.C. § 1395i. The fund is allowed to borrow money from other federal trust funds but not to receive any
general appropriated funds.
52
42 U.S.C. § 1395j.
10The right to health:
United States of America
possible enrollment period, usually in relation to the month an enrollee turns 65 but possibly
later if not retired at that time and still covered by another plan, 53 will pay a premium penalty
calculated on the basis of the number of months late in enrolling after the statutorily defined
initial enrollment period, or after no longer being covered by another plan.54
FRAME 7
42 U.S.C. § 1395c (part)
Description of program
The insurance program for which entitlement is established by sections 426 and 426–1 of this title provides
basic protection against the costs of hospital, related post-hospital, home health services, and hospice care
in accordance with this part for (1) individuals who are age 65 or over and are eligible for retirement benefits
under subchapter II of this chapter (or would be eligible for such benefits if certain government employment
were covered employment under such subchapter) or under the railroad retirement system, (2) individuals
under age 65 who have been entitled for not less than 24 months to benefits under subchapter II of this
chapter (or would have been so entitled to such benefits if certain government employment were covered
employment under such subchapter) or under the railroad retirement system on the basis of a disability, and
(3) certain individuals who do not meet the conditions specified in either clause (1) or (2) but who are
medically determined to have end stage renal disease.
FRAME 8
42 U.S.C. § 1395j (part)
Establishment of supplementary medical insurance program for aged and disabled
There is hereby established a voluntary insurance program to provide medical insurance benefits in
accordance with the provisions of this part for aged and disabled individuals who elect to enroll under such
program, to be financed from premium payments by enrollees together with contributions from funds
appropriated by the Federal Government.
Because of problems with the costs of the programs, and interest in providing a broader range
of services to enrollees, Congress passed the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003, which created the Medicare Advantage program.55 This program
is referred to as Medicare Part C (Part C),56 and participation is voluntary. At present, about one-
third of Medicare enrollees participate in a Part C plan. 57
53
42 U.S.C. § 1395p(d).
54
Language authorizing the penalty is found in 42 U.S.C. § 1395r(b).
55
Pub. L. No. 108-173, 117 Stat. 2066 (codified at 42 U.S.C. §§ 1395w-21-1395w-27a). This amended and replaced
a previous program, Medicare + Choice, which was established by Title IV, Pub. L. No. 105-33, 111 Stat. 251, 270-
331.
56
42 U.S.C. § 1395w-21.
57
JACOBSON, G. ET AL.: “Medicare: A Dozen Facts About Medicare Advantage in 2019”, Kaiser Family Found. (KFF)
(June 2019), https://www.kff.org/medicare/issue-brief/a-dozen-fact s-about-medicare-advantage-in-2019/.
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FRAME 9
42 U.S.C. § 1395w-21 (part)
Eligibility, election, and enrollment
(a) Choice of medicare benefits through Medicare+Choice plans
(1) In general
Subject to the provisions of this section, each Medicare+Choice eligible individual (as defined in paragraph
(3)) is entitled to elect to receive benefits (other than qualified prescription drug benefits) under this
subchapter-
(A) through the original medicare fee-for-service program under parts A and B, or
(B) through enrollment in a Medicare+Choice plan under this part,
and may elect qualified prescription drug coverage in accordance with section 1395w–101 of this title.
(2) Types of Medicare+Choice plans that may be available
A Medicare+Choice plan may be any of the following types of plans of health insurance:
(A) Coordinated care plans (including regional plans)
(i) In general
Coordinated care plans which provide health care services, including but not limited to health
maintenance organization plans (with or without point of service options), plans offered by provider-
sponsored organizations (as defined in section 1395w–25(d) of this title), and regional or local
preferred provider organization plans (including MA regional plans).
(ii) Specialized MA plans for special needs individuals
Specialized MA plans for special needs individuals (as defined in section 1395w–28(b)(6) of this title)
may be any type of coordinated care plan.
(B) Combination of MSA plan and contributions to Medicare+Choice MSA
An MSA plan, as defined in section 1395w–28(b)(3) of this title, and a contribution into a
Medicare+Choice medical savings account (MSA).
(C) Private fee-for-service plans
A Medicare+Choice private fee-for-service plan, as defined in section 1395w–28(b)(2) of this title.
(3) Medicare+Choice eligible individual
In this subchapter, the term “Medicare+Choice eligible individual” means an individual who is entitled to
benefits under part A and enrolled under part B.
The 2003 legislation also instituted a program to cover prescription medications, Part D.58 An
earlier attempt to institute such a program was discontinued after one year. 59
58
Pub. L. No. 108-173 11 Stat. 2066, 2071-2076 (codified at 42 U.S.C. §§ 1395w-101-1395w-154).
59
Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-360, 102 Stat. 688, repealed by Medicare
Catastrophic Coverage Repeal Act of 1989, Pub. L. No. 101-234, 103 Stat. 1979. For more information on these
laws, see O BERLANDER: supra note 46, at 56-73.
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