In recent midterm election exit polls, 41% of American voters pointed to health care as the top issue for the nation. But while there’s a clear consensus on its significance, folks in the U.S. cannot seem to agree if health care is a right, a perk, or just a product.
This stands in stark contrast to the global public health community, where the majority sees health care as a human right.
To get a feel for what treating health care as a human right might look like in the U.S., let us take a peek at Colombia. Their constitution labels it a right. That is a powerful thing, both symbolically and practically – but it is tricky to turn into reality. So, how does it play out?
Health as a right in Colombia
The 1991 constitution of Colombia did not just add health care to the list of rights. It also rolled out a new legal tool called the tutela, making it easy for folks to legally defend their basic constitutional rights. With the tutela, Colombians can take their issues directly to a judge. Within 10 days, the judge has to decide if their basic rights have been infringed, and if they have, to come up with a suitable fix. The Colombian Constitutional Court recognizes the right to health care as a key right.
The tutela has been popular in Colombia because it is affordable, speedy, and user-friendly. In 2015 alone, it was used for over 600,000 constitutional rights claims, with about a quarter related to health care issues.
So how is health care set up in Colombia? It is a mixed bag. Those with regular jobs get their insurance from their employers, while others can get insurance with government help. Laws and rules make both public and private insurance firms cover medicines, services and procedures listed in an official benefits list. Today, over 95% of Colombians have health insurance, a big leap from about 25% back in 1992.
In 2015, most health-related tutela claims were about access to treatments (25.6%), medications (17.3%), prosthetics (11.4%), and specialist doctor appointments (11.3%). Almost two-thirds of these claims were for things listed as required benefits – that’s stuff all insured folks should have access to no matter what. This suggests there are still major hurdles in accessing health care goods and services. These numbers have stayed pretty stable over the past 15 years.
In reply, key tutela rulings have called on Colombia’s congress to ensure both insurance systems provide the same benefits, cover transportation for health care, give people more choice of insurance firms and put more limits on how insurance companies can pass costs onto patients.
Why do people file health tutela’s if they do not trust the courts?
Despite expressing low to zero faith in judges, the formal legal system, and their own rights, Colombians keep filing tutela claims. To understand why, I spent some time in Colombia between July 2016 and May 2017, talking to 90 folks like lawyers, judges, government officials, and service providers, and also 93 regular folks from different walks of life. Plus, I surveyed 310 Colombians who were busy filing tutela claims. I found that people see the tutela as their one and only way to stake a claim for stuff that matters to them, like health care. They turn to the courts because they cannot see any other way out, not because they have a deep-seated trust in the courts.
For instance, a very poor woman I spoke to recalled a breathing problem she had a few years back. She suspected something was up with her trachea, but she could not find a doctor to treat her because she was informally employed and could not afford costly private care. So, she walked into the courthouse and explained her problem to a judge, and just like that, she filed a tutela claim. The judge sided with her: His decision meant that her subsidized insurance had to cover creams and diapers instead of the overnight nurse she had asked to keep an eye on her breathing.
In this case, the plaintiff fought for her rights and got some kind of relief, but it was far from perfect. The solution seemed disconnected from her issue: How would diapers and creams help a breathing problem? But this is not shocking. Judges have to deal with tutela claims before they can get to their other work; they handle a broad range of issues, from squabbles between neighbors to unlawful sackings at work, regardless of their specialty.
While stories like these are not unusual, the tutela does help some folks get better access to health care goods and services. Of course, there is plenty of room for improvement. Judges could use more tutela-specific expertise, and the workload is immense. But for Colombians, there are not many other choices. As one person I interviewed put it, “Before the tutela, there was nothing one could do. It was necessary to wait for a politician to be elected, and if he cared about that community, wait for him to intervene in some way. Not now. Now, an individual, a single person, can file a complaint with the tutela.”
So, what does all this mean for the U.S.?
While the U.S. does not recognize a constitutional right to health care, more than 130 countries do. This is true across a variety of health care systems, including ones that are nationalized and mixed public-private systems. While the tutela model might be a long shot for the U.S., it is still worth looking at other countries’ experiences.
Colombia’s experience tells us that recognizing health care as a human right can work, but only if there’s political will and institutional changes that allow folks to actually claim their right to health care.