Proponents of universal health care believe that health care is a universal human right, but is it a constitutionally-protected right, and if so, how does the U.S. Constitution compel the government to protect that right?
We can make the argument that the right to health care is indeed protected under the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment has been successfully invoked in cases involving unlisted rights such as the right to privacy. Surely if health care is a human right, then it must be protected by the Ninth Amendment.
If the right to health care is protected by the Constitution, does that mean the federal government is compelled to provide universal health care to all citizens? Many proponents of universal health care say yes, but I disagree. Just as the First Amendment, which protects free speech, does not require the government to pay for speaking venues for all citizens; or the Second Amendment, which protects the right to bear arms, does not mandate that the government provide free guns to all citizens, the Ninth Amendment should not be construed as a mandate for free, federally-delivered health care for all citizens. Instead, it should be interpreted as a restriction on the government.
The other amendments are mostly worded in negative language: the First forbids the government from limiting free speech; the Second forbids the government from disarming the public. Likewise, the Ninth, applied to health care, implicitly forbids state and federal governments from passing any law that limits citizens’ access to health care. If we dig deeper into the fundamental reasons that health care in the United States has become inaccessible for many citizens, we’ll see that federal law is largely to blame — in direct violation of the Ninth Amendment. I argue that real progress toward universal health care requires a reduction in federal power over the health care industry, not a massive increase as most proponents of universal health care argue.
How is the right violated?
In essence, health care is inaccessible to many citizens because it is too expensive, and it is too expensive because of federal policies. A recent JAMA article explained that the biggest drivers of high costs in health care are high prices of labor, devices, pharmaceuticals and administration. Federal policies are to blame for the inflated costs of each.
Administrative costs are directly inflated by the high burdens of federal regulations. An administrator at a major hospital system in my area confided to me that 50 percent of the hospital’s gross earnings were being spent on administrative costs associated with Medicare/Medicaid compliance, which in turn forced the hospital to raise prices on all other patients. Since federal regulatory burden is driving up costs, and this ultimately puts health care out of some citizens’ reach, the regulations are technically in violation of the Ninth Amendment.
The other elements of cost — labor, devices, and drugs — are expensive because supply does not meet demand. The reason for the limited supply? Once again, federal law.
Drugs and devices are sold at prices far exceeding the costs of manufacturing because federal regulations either directly ban competition, or they make the approval and quality control process so difficult or expensive that competitors do not enter the market to drive down prices.
While the pros and cons of patent protection on new drugs are open to debate, there should be no controversy regarding off-patent drugs, which comprise 80 percent of all prescriptions. Yet the current regulatory environment has driven significant consolidation in the generic drug sector, leading to rising prices for generics in recent years (over 400 generic drugs have seen prices increase by over 1000 percent, in part due to the difficulty of receiving FDA approval to manufacture a generic, according to Ameet Sarpatwari, JD, Ph.D. of Harvard Medical School). Those regulations are clearly in violation of the Ninth Amendment. Of course, laws should exist to promote safety in medicine, but the burden of the regulations must not compromise the ability for a citizen to receive needed care.
Finally, labor costs for physicians and nurses are raised because the federal government limits the number of residency slots and indirectly inflates the cost of undergraduate and medical education (how this happens is a complex topic for another discussion; salaries are the least inflated of the factors discussed here).
Clearly, there are several federal policies that drive up medical costs, which ultimately limit citizens’ right to access health care — a violation of the Ninth Amendment that has gone unchallenged for many years. I argue that the path to universal health care requires us to take a stand against this violation.
What can we do?
One way to address this problem is to contact our representatives in Congress and advocate for legal changes that reduce regulatory burden and increase the supply of drugs and devices. However, special interests carry significant influence over our legislators. When Senators Klobuchar and Sanders introduced a proposal in 2017 designed to increase competition and lower generic drug costs by allowing imports from other countries, the measure lost in the Senate by six votes. Out of the 32 senators who received over $100,000 in donations from big pharma from 2010 to 2016, 26 voted no (eight of 12 Democrats and 18 of 19 Republicans). It begs the question: Do excessive regulations limiting new generic drug manufacturers exist for safety purposes only or do they exist because big pharma pays Washington for an artificial monopoly?
If Congress will not help, the judicial branch offers another route to address the right to health care. When the government violates the Constitution, the burden is on citizens to challenge the violation in court after the fact. There are a number of ways this can happen: citizens who have been wronged can sue the government, states can pass their own more lenient laws in defiance of the federal statutes and then challenge the federal government in court, and individuals can practice civil disobedience until they are arrested, at which point they can challenge the laws in court.
Generally, ever risk-averse physicians will avoid the latter, but rogue organizations have popped up such as Four Thieves Vinegar that teach people how to synthesize their own versions of overpriced devices and medications such as EpiPen and Harvoni for pennies on the dollar. At the state level, we have seen citizen-initiated ballot measures attempting to reign in drug prices. A recent proposal in my home state of Ohio attempted to legislate a convoluted and poorly-designed mandate to cap drug prices at the levels paid by the VA, but this measure failed to get to the root of the supply problem.
A truly gutsy state law would authorize new drug manufacturers to open in the state, operate only under simplified state regulations and not FDA authority, and sell drugs within the state only, thus bypassing the gridlock and corruption in Washington to get life-saving medications to citizens at reasonable prices. If and when Big Pharma pressures the federal government to crack down on such a state, the battle in the courts for recognition of Ninth Amendment protections would begin.
While no one wants to get into a protracted legal battle, it may be the only way forward. I do not believe that a single-payer system, or any proposal that expands federal power over the health care sector, will lower costs. Our federal representatives are too easily bought off by special interests that profit from inefficiency and high costs; therefore federal law will always limit supply at citizens’ expense. You cannot solve the problems of over-regulation with more regulations.
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