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How Can We Fix the Constitution?

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In Sickness and in Health

The Constitution should give Americans the right to basic health care.

This photo taken on July 2, 2010 shows a pregnant woman walking around the Askham community health care clinic in Askham village in the Kalahari, Northern Cape.
A South African community health care clinic in Kalahari, Northern Cape.

Photograph by Paballo Thekiso/AFP/Getty Images.

This month, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration, restoring the balance of war powers, Supreme Court term limits, and forcing Congress to fix the rules of congressional procedure.

Right to Health Care (New Amendment)

More than 70 percent of national constitutions around the world now provide a right to health care. The U.S. Constitution, of course, is not among them. It should be. We have the means to pay for universal access to health care, and polls historically show support for it. And so we propose a new amendment to the Constitution:

The people shall enjoy a right to reasonable and adequate healthcare. The Congress shall have power to ensure, by appropriate legislation, the foregoing right.

This provision would create an individual civil right and clarify Congress’ power to enact health care legislation. “Positive” socio-economic rights—a right to something like health care or education—have so far been absent from our Constitution. But they have captured the popular imagination in the past—remember FDR’s call for “freedom from want”? And with few exceptions, American courts are effective at ensuring that when the Constitution guarantees a right, the government must deliver it. So if the Constitution enshrined a right to health care, a recently unemployed and uninsured person who was denied basic preventive health care could take her case to court, and a judge could order a government-owned hospital (such as a Veteran’s Administration facility) to treat her. The scope of the right to treatment would be greater than the right to emergency access now required by federal law, extending to reasonable routine and preventive care.

Arguably, the Affordable Care Act already accomplishes some of what a constitutional change would. But the power of Congress to enact that law is of course up for grabs before the Supreme Court. And placing the right to health care in the nation’s governing document would settle that debate; it would also give this right a vaulted status. Congress and the president could come up with a variety of ways to fulfill it—a right to health care doesn’t mean a right to single-payer—but we could rest assured that Americans would be guaranteed some preventive and basic care.

To be sure, in other countries right-to-health-care provisions have produced mixed results. In some countries the promises prove empty, though one of several bright spots is South Africa, where the inclusion of a right to health care in the 1996 Constitution spurred the government, for example, to provide free anti-retroviral drugs to HIV-positive pregnant women (though many South Africans still lack access to other basic care).

No doubt, some world constitutional trends are not right for this country or are just bad ideas. But the movement toward a constitutional right to health care is consistent with the American values of equal opportunity and individual dignity, and it is within our means. This is one global movement worth joining.

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