Isabella Carter
The US Constitution does not explicitly address a right to health care, and the words health or medical care do not appear in the text. However, the Constitution does protect a person's freedom of choice in medical care, including the right to refuse unwanted treatment and the right to medical self-preservation. The Fourteenth Amendment's Equal Protection Clause is often used to promote health equity and reduce disparities in access to health services based on race, ethnicity, gender, and other factors. Additionally, the Supreme Court has recognized a person's liberty interest in their medical autonomy, and states have the authority to regulate medical procedures and specify conditions under which they may be performed. While the FDA regulates the introduction of drugs and medical devices, state laws and the Right-to-Try laws take precedence in preserving an individual's medical freedom and autonomy.
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What You'll Learn
The Fourteenth Amendment's Equal Protection clause
The Fourteenth Amendment to the US Constitution is well-known for its Equal Protection Clause, which states that "nor shall any state [...] deny to any person within its jurisdiction the equal protection of the laws". This clause, which came into effect in 1868, mandates that individuals in comparable situations be treated equally under the law.
The Fourteenth Amendment addresses various aspects of citizenship and the rights of citizens. The phrase "equal protection of the laws" is the most frequently used and litigated phrase in the amendment. It has been central to several landmark cases, including Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), and Bush v. Gore (election recounts). The Equal Protection Clause is located at the end of Section 1 of the Fourteenth Amendment. While it only applies to state and local governments, the Supreme Court has held that the Due Process Clause of the Fifth Amendment requires equal protection under the laws of the federal government.
The Fourteenth Amendment marked a significant shift in American constitutionalism by imposing more constitutional restrictions on the states than before the Civil War. The primary motivation behind the Equal Protection Clause was to validate the equality provisions in the Civil Rights Act of 1866, which guaranteed all citizens the right to equal protection by law. This included protecting the privileges and immunities of all citizens, now encompassing Black men.
The Fourteenth Amendment has been interpreted as not granting broad political and social rights to citizens but rather solidifying the 1866 Civil Rights Act. However, it is also widely believed that the amendment was always intended to ensure equal rights for all in the United States. This interpretation was used to expand the protections for Black Americans. Despite this intent, the amendment has not been fully effective in implementing civil and human rights, with racial inequalities persisting in healthcare.
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Right-to-Try laws
The US Constitution protects a person's freedom of choice in medical care, including the right to refuse unwanted medical treatment and the right to preserve the doctor-patient relationship. Right-to-Try laws are United States state laws and a federal law that allow terminally ill patients access to experimental treatments (drugs, biologics, devices) that have completed Phase I testing but are not approved by the Food and Drug Administration (FDA).
Before the Right-to-Try laws, patients needed FDA approval to use experimental drugs. As of 2018, 41 US states had passed Right-to-Try laws, with Arizona and Montana enacting expanded versions of the law in 2022 and 2023, respectively. The laws are intended to allow for individualised treatments not permitted under the FDA's current regulatory scheme. The chief advocate of these laws is the Goldwater Institute, a libertarian think tank based in Arizona, which created the model act on which the state laws are based.
Supporters of Right-to-Try laws argue that they return control of medical decisions to a local level, and that if patients have the right to die through physician-assisted suicide or voluntary euthanasia, they should also be afforded the right to try experimental treatments. However, critics argue that Right-to-Try laws may put patients at risk of losing hospice or home healthcare, and that the costs surrounding treatment can be prohibitive. In addition, medical and health experts have raised concerns about the potential risks of using unapproved drugs, and the reduction in FDA oversight of drug regulation.
The FDA's role in implementing the Right-to-Try Act is limited to receiving and posting certain information submitted to the agency. Companies developing drugs for life-threatening diseases or conditions are responsible for determining whether to make their products available to patients who qualify for access under the law. Ultimately, patients interested in Right-to-Try should discuss this pathway with their doctor, who can then consult with the sponsor of the investigational drug or biological product.
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Individual liberty
The US Constitution does not explicitly address a right to health care, and the words "health" or "medical care" do not appear anywhere in the text. The framers of the Constitution were more concerned with guaranteeing freedom from government than providing for specific rights to governmental services such as health care.
However, the Constitution does protect a person's freedom of choice in medical care, including the right to refuse unwanted medical treatment and the right to medical self-preservation. The Supreme Court has long recognized a person's constitutionally protected liberty interest in their own medical autonomy, especially when those interests are secured by state laws. The scope of a state's authority over the practice of medicine includes the authority to decide which medical procedures are acceptable to perform and to specify the conditions under which a medical procedure may be lawfully performed. For example, state Right-to-Try laws regulate the conditions under which a patient is eligible for investigational drugs and a doctor may prescribe investigational treatments.
The Fourteenth Amendment's Equal Protection Clause is also relevant to health equity. While it has not been fully effective due to judicial interpretation, it is meant to require the government to treat similarly circumstanced individuals in a similar manner. The Supreme Court has interpreted the Fourteenth Amendment more narrowly than intended, holding that it does not apply to discrimination by private actors.
In the context of prisoners and involuntarily confined mentally disabled patients, the Supreme Court has held that they are entitled to adequate food, clothing, shelter, and medical care as a component of the protections accorded by the Eighth Amendment. This includes the right to safe conditions and minimally adequate training to avoid physical restraints, as part of their substantive liberty interests guaranteed by the Due Process Clause of the Fourteenth Amendment.
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Right to refuse unwanted treatment
The right to refuse unwanted medical treatment is a fundamental aspect of medical freedom and is protected by several provisions within the United States Constitution. While the Constitution does not explicitly mention medical freedom, the Supreme Court has interpreted certain amendments as safeguarding an individual's autonomy over their own body and healthcare choices.
The Fourteenth Amendment is often cited as the primary source of protection for medical freedom. The Due Process Clause of this amendment guarantees that no state shall "deprive any person of life, liberty, or property, without due process of law." The Supreme Court has interpreted the liberty interest protected by the Due Process Clause as including a right to make decisions regarding one's own body and medical treatment. This right was affirmed in the landmark case of Cruzan v. Director, Missouri Department of Health, where the Court recognized that individuals have a constitutionally protected liberty interest in refusing unwanted medical treatment.
Additionally, the First Amendment's protection of freedom of speech and freedom of religion can also come into play when discussing medical freedom. Freedom of speech encompasses the right to refuse to speak or listen, which can extend to the refusal of certain medical treatments or procedures. Similarly, freedom of religion protects individuals' right to practice their faith, which may include making decisions about medical care in accordance with their religious beliefs.
The right to refuse unwanted treatment is not absolute, however. In certain circumstances, the state may have a compelling interest to override an individual's decision, such as in cases where refusing treatment may pose a significant risk to public health or safety. Additionally, the right to refuse treatment may be limited for individuals who are incarcerated, involuntarily committed, or otherwise lawfully detained by the state.
It's important to note that the specific laws and regulations regarding medical freedom and the right to refuse treatment can vary from state to state. While the Constitution sets a baseline for protection, individual states may have their own laws and policies in place that further define and protect an individual's right to make decisions about their own medical care. These laws may include advance directive statutes, which allow individuals to make their end-of-life care wishes known, and informed consent laws, which require healthcare providers to obtain a patient's consent before providing treatment.
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Right to health as a social fundamental right
The right to health is a fundamental human right that is essential for social well-being. This right is protected by various international agreements and constitutions, including the United Nations' Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the World Health Organization (WHO) Constitution. According to the WHO, health is defined as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." This definition sets a standard for the right to health, which includes access to quality health services, control over one's health and body, and freedom from discrimination and violence.
The right to health as a social fundamental right has several key aspects. Firstly, it includes the principle of non-discrimination and equality. This means that health services should be provided equitably, without discrimination based on factors such as gender, race, ethnicity, disability, or socioeconomic status. Governments have a responsibility to prioritize the needs of marginalized and disadvantaged groups to achieve health equity. Secondly, the right to health entails access to quality health services. Quality health services should be safe, effective, people-centred, timely, integrated, and efficient, ensuring that individuals receive the care they need without harmful delays.
Additionally, the right to health encompasses the right to control one's health and body. This includes access to sexual and reproductive information and services, as well as the right to privacy and informed consent. Individuals should be respected and treated with dignity, and they should have the autonomy to make decisions regarding their health and medical care. This includes the freedom to refuse unwanted medical treatment and the right to medical self-preservation. Furthermore, the right to health also extends beyond individual rights and includes social measures to ensure adequate health for all. Governments have an obligation to implement policies and programmes that promote and protect the health of their citizens, such as providing access to safe and potable water, sanitation, and social services.
While the right to health is recognized as a fundamental human right, there are challenges and debates surrounding its interpretation and application. There may be discrepancies between different countries and regions in terms of how health is defined, what specific entitlements are included in the right to health, and which institutions are responsible for ensuring its protection. Additionally, achieving health equity and addressing discrimination in healthcare can be complex and require a combination of legal, social, and policy interventions. Nevertheless, the recognition of the right to health as a fundamental social right underscores the importance of ensuring that all individuals have the opportunity to attain the highest attainable standard of health and well-being.
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Frequently asked questions
The US Constitution does not explicitly address a right to health care. The words "health" or "medical care" do not appear anywhere in the text of the Constitution. However, the Supreme Court has demonstrated a commitment to deferring to state solutions that protect individual rights, such as the right to try promising treatments that may save one's life.
Right to Try laws give patients the freedom to make choices about their treatments, taking decisions out of the hands of bureaucrats and putting them back with doctors and their patients.
State Right-to-Try laws regulate conditions under which a patient is eligible for investigational drugs, allowing doctors to prescribe investigational treatments if the manufacturer is willing to provide them.
In Harris v. McRae, the Supreme Court held that the Medicaid program's refusal to pay for medically necessary abortions did not burden a woman's fundamental right to choose an abortion. The Court found that poor pregnant women were not denied equal protection of the laws because the abortion provisions were rationally related to a governmental interest in protecting the potential life of the fetus.
The Fourteenth Amendment of the US Constitution includes the Equal Protection clause, which states that "nor shall any state ... deny to any person within its jurisdiction the equal protection of the laws." This amendment can be used to reduce health disparities and promote health equity, although it has not always been effectively enforced by the judicial branch.
