A Right to Health? The U.S. Legal Case for Making it Happen

Mark Masselli (00:05)
Are Americans suffering from an undiagnosed right to health? That kind of provocative question is at the heart
of our guest’s writing and advocacy. She says, we're closer to fully securing a right to health than supporters
may even realize.

Christina S. Ho (00:19)
Like you, right? This has been, to me, something that just was sort of basic justice and basic common sense,
right? That it would be desirable to have a right to health. that in fact, right, it's, something that many
communities at many different times have had. and I never felt like I got adequate explanation for why we don't
have one.

Margaret Flinter (00:44)
Our guest is Christina S. Ho. She's a professor of law at Rutgers University, and the author of a new book,
“Normalizing an American Right to Health”. Professor Ho is a veteran of the healthcare policy wars, having
served on the White House Domestic Policy Council, and for then-Senator Hillary Rodham Clinton.

Christina (01:02)
You have all these people who are out there who support, right? a better government role in assuring healthcare
for everyone, but they're afraid of the disruption to what they might already have.

Margaret (01:18)
And this is Conversations on Healthcare.

Mark (01:28)
Well, Professor Ho, welcome to Conversations on Healthcare.

Christina (01:33)
Thank you for having me. I'm delighted to have this conversation.

Mark (01:36)
Oh, that's great. You know, when you talk about normalizing an American right to health, you're, you're
speaking our language. Over the last 50 years, we've been advocating, holding up the banner high that
healthcare is a right and not a privilege, but normalizing is an interesting word choice you used. Do you mean to
suggest that thinking this way is abnormal right now? Maybe… well give us some more description.

Christina (02:03)
So, you know, like you, right? This has been, to me something that just was sort of basic justice and basic
common sense, right? That it would be desirable to have a right to health, that in fact, right? It's, something that
many communities at many different times have had. and I never felt like I got adequate explanation for why we
don't have one here. Now, of course, it's the conventional response, right? And so the conventional response is,
you know, you know, of course it's something that we would all benefit from, but it's just not possible here in
the US because, right? And this is, this is what you usually get in response. And in fact, I've probably said this to
someone myself too. So, you know, I'm, I'm a culprit along with everyone else, but, you know, you always get
some kinda answer. Like, in the US we, protect negative liberties, right? So we can prevent the government
from taking away something that you already have, but we never really furnish, affirmatively provide,
something and lets you claim it as an entitlement, right? So those kinds of materials, socioeconomic claims are
again, right, sort of not something that is, familiar in the us. So that is just not a satisfactory answer. Okay? So in
these past months, we have seen government mobilize nimbly automatically, right? To, to commit vast
resources to bailing out Silicon Valley Bank depositors, right? First Republic Bank, depositors. we have
something called FDIC. People can sue, right? In times of catastrophe to claim on government material
resources. And, you know, I just, I see this all over for material interests other than health. Angela was just not
clear to me that the answer that we have been given all along was satisfactory, right? Meanwhile, right? If you
think about it, health is something we already have, right? It's something that we ought to be protected from
state action that might impinge, impair or take it away from us. So let's say for instance, fracking, right? So we
know that the government subsidizes fracking, right? And it may be for good policy reasons or not, right? That
can be debated, but the fact that, right? It has a whole cascade of health effects on communities, sort of around
the fracking sites, and then, you know, the global community at large, right? Those are things that have been
documented. We know even that tax inequality can kill, right? Every 10% reduction in the E I T C results in a
10, in a 2 23 0.2, sort of, increase in the number of infant deaths per a hundred thousand, right? So, so we start
to sort of realize more and more about what, a lot of government action in other areas, can do to affect our

health. And, and I think we ought to be able to say, look, let's ha let's, let's be able to call for an accounting each
time. State action like that takes place.

Margaret (05:09)
Well, Christina, in the book you present, some cases and policies to establish a system of health and healthcare
rights, in America. And, you know, looking back, over the, you know, last 20 years or so, we would certainly
put the Affordable Care Act perhaps at the front of that list that made a significant difference. But maybe, you
could share with us what are some of the other cases and policies, that you suggest, that we look at that really
establish this system of health and healthcare rights in America?

Christina (05:42)
Yeah. so in the book, right? So I wanna show, right, that there are these ways that we establish rights, and some
of them I've sort of talked about, right? So there's this notion of government backing in the event of catastrophe,
right? And in the book, I, I call it sort of the government reinsurance function, okay? And we see this in a
number of different areas, including in pensions, including in banking as I've described, including, you know,
Billy, sort of, we look at flood insurance, crop insurance, just a whole bunch of domains. where, you know, we
see government step in with this kind of, you know, in, in some sense it's safety net, right? It's an entitle based
backstop. so that's one of the, one of the, one of the areas in which I think we need to think more carefully about
sort of how we might extend that usefully in the health context. Another area is, impact assessments, right? So,
all of us have probably heard, if not, if we don't really know specifically about, but we've heard about the
government paperwork, paperwork reduction act, right? And so every time the government takes a regulatory
action that burdens right, Americans in the form of additional paperwork, right? The government actually has to
stop and produce a justification and has to say, look, this is necessary. We understand that this is not, we, we
don't intend to burden you with more paper paperwork, but is for a really important goal, okay? And we have
done the research and we don't think we can accomplish this in any other way. Isn't it striking that we don't yet
have that policy to protect us from health impacts that we talked about before, including right, tax inequality,
fracking sprawl, right? Which increases, road traffic accidents, right? and even, right, if you think about it, the
government is providing monopolies right? To pharmaceutical companies, and extending right their patents. We
know that this makes, important treatments unaffordable, right? For many Americans. And then that can have a
long-term health impact too. So, so all these actions the government takes, how can it be that we have some kind
of claim against government action that gives us more paperwork, but we don't have that same claim against the
government when it takes action, that impairs our health. So, so that's, that's something where it doesn't require
constitutional transformation, it just requires parity in terms of these statutes that we already have in other areas.

Mark (08:10)
How do you frame up the, the, you know, Medicaid, Medicare in the sixties coming on the Affordable Care
Act? How, how does that fit into your model? What, what, how, how do you describe what those, coverages are
or, or, or the limitations they, they present as well?

Christina (08:28)
Yeah. Yeah. so, you know, in the book, right, when I was thinking about this, this issue of how health wasn't
necessarily being treated on par with a lot of these sort of other, areas like pensions, like banking. like housing
finance, where, we provide sort of robust government backstops, to, you know, things like liquidity crises or,
you know, mortgage crises. I was trying to think, well, why haven't we done the same in health? And then I got
to thinking about it and I thought, you know what? We haven't done so expressly, but it has been the impulse
behind a lot of, the most important actions we've collectively taken in the health sector, right? So, for instance, if
you think about sort of the politics of the inception of Medicare, it was in some sense kind of a, there was a
strange bedfellows coalition, right? So, you know, employers and, unions actually both agreed that, that
Medicare was needed, and even insurance companies, right? were happy to kind of offload the elderly, right?
People with disabilities. And over time we've added, people with ALS and stage renal disease, right? So, so the
populations that the government pays for through Medicare are the populations that the private sector has found,
right? Sort of people who are sort of too catastrophically expensive for them. To really cover, right? So we've in
a sense, kind of accomplished something similar in a backdoor manner through, through Medicare and even
Medicaid, right? If you think about a Medicaid eligibility category of, the medically indigent, right? This was
something that, hadn't been seen before in, AFDC, right? You hadn't had this notion that even if someone wasn't
right, in poverty per se, right? We were, we weren't looking at sort of whether they were, they were, poor and,
but we were, we were looking at well have their medical expenses right, become so catastrophic that they, their
existing income is spent down to the point that they income qualify, right? That was the notion behind the
medically indigent eligibility category and Medicaid. So I, I just started to see that there are sort of traces of this

same strong impulse, sound impulse, right? To have the government step in when sort of catastrophic thresholds
are, are reached. And I think that that has powered some of our, our, health policies in the past.

Margaret (11:09)
I'd like to sort of, build on that a little bit ‘cause it might clarify something I was wondering about. You, have
written, and advocated for the United States to be the reinsurer or to reinsure America's health plans and, you
know, reinsurance means different things to different people. But I'm really curious, how you think that would
work and sort of what's the, what's the societal benefit to the US being the reinsurer? I imagine that might have a
significant impact on how, commercial insurers did their business, but share with us what you're thinking is on
that, and of course, you know, what, what the cost, would be, how would that be born?

Christina (11:47)
Sure. so right, this is not a new idea, right? It's an idea that has, you know, one of the most interesting things I
found out in researching the book was that, I hadn't known before that Dwight de Eisenhower actually proposed,
right? Health reinsurance, right?. And so in his 1954, state of the Union address, right? And this is sort of post,
you know, Harry Truman's kind of, you know, heroic, but Ill-fated attempt to try to achieve universal coverage,
right? but Eisenhower doesn't wanna give up, right? He doesn't wanna concede. And he says, you know, look,
there is something, there is an important rule that the government can play in our, in offering coverage to all
Americans, and we can serve as a reinsurer. And so what he proposed, right, was that the government would
step in and take over the claims that were above a certain catastrophic threshold. So high-cost claims, right? So
in some sense, right? Similar to what we're thinking about with, with, with Medicare. so, so folks who, who, you
know, private insure insurance really just, hadn't prepared for covering and, and, and weren't necessarily in a
position to be able to capitalize, but what he said was he wanted something in exchange. He said, if the
government does this right, private insurance has to make sure that it opens the doors to all the people who need
health coverage. And that means people you might not have covered before. That means people with preexisting
conditions, that means people who have disabilities, that means people who, are, you know, elderly, right? And,
and so we wanna open the doors to all Americans be able to get covered, and the government is gonna stand in
the background to make sure that the resources are there in order to, in order to guarantee this coverage. So, so
then, right? If you look at, you know, fast forward, John Kerry in 20, in 2004, right? One of the centerpieces of
his, his presidential platform on healthcare, when he was running at the time was really reinsurance to back the
employer-sponsored, marketplace, right? And he, he said, look, we need to be able to, you know, ensure the
stability of employer sponsored health coverage. I mean, we'd sort of, you know, all experienced the kind of,
outcry from people who, during the health Clinton health reform years, and then even afterwards we're saying,
look, we're afraid of losing the coverage that we already have. Right? And so this was a, this was an, an attempt,
you know, a policy proposal to say, look, we can stabilize that, but in exchange, right? What we want is some
kind of standardization. Okay? So we wanna make sure that everyone's getting the benefits that they need, right?
We, we wanna make sure that people are not excluded. and, you know, it got costed out at the time by, Ken
Thorpe, and, you know, so just off the top of my head, all I remember was the overall cost of the whole, you
know, all of his health proposals. So there were, you know, a number of other items on the list, including, I
think, premium tax credits and so forth. So, the overall price tag was something on the order of I think 600,
billion. So it's not, you know, reinsurance was some, some small, like, some fraction of that, right? But it's not
outside the realm of sort of what we're spending in other areas, if you think about just crop insurance alone,
okay? So this is reinsurance for the primary private crop insurers who are taking, right, who are paying for,
right. The losses that farmers experience because of catastrophe. Okay. So this parallel situation, I think we're,
you know, I think it's something on the order of like 150, 200 billion over a 10, right? So, so again, right, we're
not talking about orders of magnitude difference. so, you know, so that, so that's one, one answer, but just in
terms of sort of what kinds of benefits were, you know, I could talk about that for a long time, but I just wanna
talk about one, right now, which is, if we can use reinsurance as leverage, which is actually what the federal
government does for mortgage insurance, they actually, with the FHA required that, you know, FHA mortgages,
you know, be sort of 30 year low down payment mortgages, right? So you can create a standardized pro. We
should do the same in health insurance, and we should say, you know, we can… beginning to do it in
Obamacare, do it in the, private employer market, you know, do it for Medicaid, right? And say, look, the
federal government stands behind these programs, but they need to offer certain standard things, and they need
to undertake cost control, right? The c a marketplace, there are about 15 states that have waivers, to implement
reinsurance in their states to stabilize the marketplace. And one of them is Colorado and I in Colorado, when
they made their proposal, they had a term in their reinsurance proposal that said, you know what, all the, private,
ACA plans need to pay no more than 150% or 200% of Medicare. So use Medicare reference pricing, right?
This is a way to bend the cost curve, right? And only the federal government has the kind of leverage to be able
to kind of set those standards. And I think, I think reinsurance is a way that we begin to stitch all the parts of our
fragmented healthcare system together and put us on a footing to a more unified and rational healthcare system.

Mark (17:09)
Yeah, that's a very interesting point. And probably another one of those examples are the flood insurance that
people have who live in well-off communities, across the, across the country. But I wanna focus on one thing
you advocate for, which is a required health impact assessment that would protect Americans from health
harms. And you compare it to how the country already makes assessments to pro protect small businesses from
economic harm. How does a health impact assessment strategically fit into your argument as health as a Right?

Christina (17:41)
Well, so, well, I love that question. Part of, you know, part of it goes back to kind of the impulse, for writing the
book, which I sort of talked about in the first place, which is that I'm just dissatisfied with this, this answer, this
conventional response that you get that you know, well, we only do negative rights here in the US and, so that
that's why we can't have a right to health. Right? And I kept thinking, you know, I, I don't see why we couldn't
do something health promoting in the form of a negative, right? Right. You look around and you see people's
health endangered on so many fronts, right? you know, gun violence, right? you know, police violence deaths of
despair, right? And, and, you know, we try to think about, well, what is it that is feeding this? Could we be
examining our government policies, right? To try to make sure that we're not paying for other policy goals in the
currency of lives, right? And so, so that's what I sort of began to see. I was like, how can, how can it be that we,
you know, force the government to take a step and make sure that every time we engage in some kind of
regulatory action, that we are not unduly burdening small business, but then we don't think about, you know,
vulnerable human bodies, right? Every time the government is taking a step, why is it that, that, the public at
large right? Is supposed to absorb that in the form of toxic incarceration, right? In the form of, toxic precarity at
work, right? all of which have been documented, right? To, to have, clear health harms. So that's something that
I, I thought, I think we really ought to think about. and I think that, you know, I'll just say this, I think that there
have been many innovative energetic rights entrepreneurs, who may be on the sort of conservative side of the
ledger, right? So, so whoever is my counterpart, who may have the opposite politics of me, they're thinking
about, well, how do we advance gun rights through legislation? How can we, you know, make sure to advance,
you know, religious liberty, right? Even if we have to do it through statute, even if we can't get a constitutional
amendment. And what I'm, what I'm trying to do is sort of seed the, impulse that sort of, we should be doing the
same, right? And I think health impact assessments is one way we can do that, right?

Margaret (20:05)
Well, it's always interesting, in these discussions to think about what people around the country are saying. Of
course, it gets even more interesting during a, election, cycle, but you've looked at the polling and say there's
significant support, for the government to step more into this area. And you, you quoted, the Pew Research
Center, finding that 63% of US adults, 63% say the government has the responsibility to provide healthcare
coverage for all. And of course, we're veterans of the, the lead up to Obamacare and hands off my Medicare and
all of the other, things that we've lived through over the years. But if 63% of US adults say that, who or what is
holding us back and, is what you refer to, is it what you've referred to as prevailing neoliberal ideology, and how
does that reconcile? Tell us about that.

Christina (21:02)
So, you know, we all kind of bear the battle scars of, right, the, the Clinton health reform years when sort of
Harry and Louise ads were sort of omnipresent and Yeah. And they, you know, just chipped away at, people's
confidence that, you know, the, the transition costs and the disruption of, of getting to health reform wouldn't
kind of overwhelm, you know, all the benefits that could be, that could be, yielded and, and you know, that
sense, right? I think that, the Obama, affordable Care Act efforts really tried to, did a good job of really trying to
make sure not to sort of touch that third rail, right? So you have all these people who are out there who support,
right? a better government role in assuring healthcare for everyone, but they're afraid of the disruption to what
they might already have, right?. And so, Obama Obama's promise that you, you know, if you like your health
plan, you can keep it. So what I like about health reinsurance, right, as a proposal is, you know, just FDIC, you
go to your bank, you know that the FDIC is in the background, you know, it, you know, your, your deposits up
to, you know, a quarter of a million dollars are, are insured by the government, but you're not interfacing with
the government. You're interfacing with your private bank. Ok. And so I think that reinsurance as a policy, can
operate in that way, and it's just, it's, you know, it's a shame. But we are privatizing Medicare faster than we're
universalizing. Medicare right now, over 50% of, you know, Medicare Advantage Yeah. Yeah. Are in Medicare,
advantage, right? so, and then the concern had always been, well, how do we get all these folks enrolled in, in a
kind of Medicare for All type program from where they were? Now, I think the nice thing about reinsurance is
that, right, reinsurance operates in the background in a way that people can't see, but in a time of need, it steps
in, and should the politics ever transform? So should we get to the point where, you know, we feel like we're

the, the stars are aligned and we can act on this kind of strong, you know, American pub, sort of public opinion
in favor, right. Of government role in assuring healthcare. Right? I, I said, I always quote this, this, bookings
Institute economist Henry Aaron, because he used to ask, and I just thought it was so funny, so, so insightful. He
said, what do we call, government reinsurance with an attachment point of zero? We would call it single, single
payer. So you can, you can get there with less disruption, right? from a, maybe a, a, a foundation of government
reinsurance, then maybe we can right now from, Medicare, given where Medicare is heading.

Mark (23:55)
You know, you were saying earlier that you're keeping an eye on the, on the other side in terms of their
strategies of how they build, on their, objectives. But I'm wondering, looking at some of the comments that have
been made about this issue, Robert Moffatt, with the Heritage Foundation rights, and I'd love to hear your
response to this unlimited demand at any given point in time must collide with limited supply access to care is
not, and cannot therefore be universal. No federal entitlement, such as Medicare or Medicaid benefits constitutes
an individual, right. Understood. As a legal claim to something of value that is enforceable like private contract,
wondering how, how you would respond to that, proposition.

Christina (24:42)
So I think, you know, and I, I cannot remember who said it at the time. this isn't the time of sort of the Jackson
Hole debates, right? Leading up to, yeah. The Clinton health reform, you know, and you know, someone said,
right, we can, we can all agree that it is very difficult to, draw boundaries around, well, what is medically
necessary care, or what, what is the healthcare that we should be entitled to? And yet people make those calls
every day, right? So, so you think it's such an insuperable problem, and yet every day we solve that problem,
right? Doctors determine what is the medically necessary care. courts are resolving cases every single day about
insurance denials and whether they are legitimate or not. And so in the, in the book, you know, as Margaret
mentioned earlier, right? I do look at all these cases that are just, you know, work a day cases where, you know,
either the courts say, no, actually that care, isn't promised under the, you know, me medically necessary care of
your insurance policy. And then sometimes they say, you know, actually it should have been, and so I don't
think it is as intractable as you might. Think. Right? and I feel like, right, we do this for all kinds of other
insurance policies all the time as well. So I don't know why we couldn't do it for health. Right? Why would we
take it off the table completely? So I teach this class, called South African Constitutional Law, which might
sound a little bit far field right, from health policy, but it is squarely part of my, agenda to try to get law students
to understand that the legal system can protect socioeconomic rights, right? They, they can make these kinds of
decisions every day, just like we make common law decisions about what is a tort or when contracts should be
upheld, right? Or when your property rights should be vindicated, right? The courts do this all the time in a, in it,
in a common law system that looks much like ours, right? In South Africa, the South Africa has a constitutional
right to health, right? And I take students there every spring and we talk to lawyers, we talk to activists, we talk
to, judges, and we just see that, right? Just like our, our court system is making calls about any number of things
that, you know, what a reasonable person might do or anything else that might seem undefinable to us, they're
doing the same thing in South Africa with regard to what they have a right to under the banner or the right to
help. Well, and so our system could do the same. It's not impossible.

Mark (27:22)
Well, one thing to add, to your conversations, in that class is that the health center movement, community health
center movement in the United States actually came out of South Africa. So, with, so that the sort of a small
factoid of, of our history. But let me just get one last question in here. a little change of topic. We wanna
highlight your work at Georgetown University Law Center, where you founded the China Health Law Initiative,
and it's aimed to foster US China dialogue. No better time to talk about that. Now, as Secretary Blinken has just
met with President Xi, and the, Chinese Foreign Secretary, trying to break this log jam, but you're focused
around legal and healthcare issues in an effort to improve global health. the reality, obviously the pandemic has
come in the way. Tell us a little more about your work and, h how do you see the situation, at this juncture
point?

Christina (28:20)
I did this amazing event, in February at uc, Irvine, with this wonderful scholar of Chinese health law, Xiang
Wang also at Rutgers. And, we talked about how in both countries, right, health security is a political
imperative. It's actually part of, you know, just like it's one of the main issues that arises in every single,
important election here in the us right? It's one of the main sort of, points that, that the Chinese government has
to be able to deliver on, in order to prove the legitimacy of its government to its people. And so, and so we sort
of talked about how, you know, what, how much we have in common, right? And I think this is a, this is a
message that kind of resonates at a time of global pandemic, right? So, so there's so much that we have in

common as a global community in terms of sort of pursuing health. and I've always felt that, and sort of at the
time when, I was at Georgetown at the O'Neill Institute, right? We were, China was looking at, a very important
health reform and the US was embarking on, Obamacare. And so it was this moment where, sort of thought
leaders in both countries could usefully come together and sort of talk about, you know, what can, what can we
sort of learn from each other's experiences and what each country is going through, because I think there's,
more, more, overlap than there is conflict. In this area.

Margaret (29:53)
Well, Christina, we really appreciate you taking the time to share the legal foundation and the arguments to back
up our belief that, not just healthcare, but health is a right, not a privilege. And thank you to our audience that's
more online about conversations on healthcare, including a way to sign up for our updates, the address CHC
radio.com. Christina continued, good luck with your work, and thank you so much for joining us.

Christina (30:17)
My pleasure. Thank you so much, Margaret and Mark.

Margaret (30:23)
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