HOLLOW STATEMENT OR EMPTY PROMISE: OREGON’S “RIGHT TO HEALTHCARE” AMENDMENT IS NOT EQUIPPED TO ACHIEVE ITS GOALS, WHATEVER THEY ARE

By: Patrick Ebeling, Volume 107 Staff Member

In the November 8, 2022, election, Oregon voters narrowly approved Senate Joint Resolution 12 (SJR 12), the Right to Healthcare Amendment.[1] SJR 12 amends the Oregon state constitution to read:

(1) It is the obligation of the state to ensure that every resident of Oregon has access to cost-effective, clinically appropriate and affordable health care as a fundamental right.

(2) The obligation of the state described in subsection (1) of this section must be balanced against the public interest in funding public schools and other essential public services, and any remedy arising from an action brought against the state to enforce the provisions of this section may not interfere with the balance described in this subsection.[2]

The primary sponsor, State Senator Elizabeth Steiner Hayward, M.D., asserted that “[e]nshrining healthcare as a right in our constitution is the next logical step in protecting healthcare access.”[3] Unfortunately, neither the goals nor effects of SJR 12 are clear and, by itself, it is unlikely to provide meaningful protection of healthcare access in Oregon.

I. IS SJR 12 A HOLLOW ASPIRATIONAL STATEMENT?

Many supporters of SJR 12 contend it is an aspirational statement, merely signifying that a right to health care is important to voters. State Senator Michael Dembrow told Oregon Public Broadcasting that SJR 12 was “not a specific proposal,” but, “more a set of values and a call to action.”[4] Similarly, the legislative argument provided to voters in support of the bill cites SJR 12 as “an opportunity for voters . . . to declare that every Oregonian deserves health care.”[5] The League of Women Voters of Oregon explained SJR 12 was “simply an aspirational bill that asks . . . [i]s Oregon committed to ensuring that every individual has access to some form of health insurance.”[6] Finally, others contend SJR 12 can only be an aspirational statement because the requirement the state balance health care funding against funding for schools and essential services “essentially makes it unenforceable.”[7]

Aspirational statements have been adopted at many levels. The 1946 Constitution of the World Health Organization (WHO) envisions the highest attainable standard of health as a fundamental right of every human being.[8] More than two-thirds of national constitutions include a statement about health, most of which “do not endow individuals with corresponding legal rights.”[9] The United States Constitution has no express reference to a right to health care.[10] However, amendments to add one have been proposed at least twice.[11] Several state constitutions contain a right to health or a healthy environment.[12] Finally, in 2005, voters in the Seattle passed a measure endorsing the principle that everyone in the United States should have “the right to health care of equal high quality.”[13]

The Seattle measure is indicative of the limited effect of aspirational statements. Proponents of the measure accepted it “would have little practical effect” beyond “lead[ing] other cities to endorse similar measures, putting pressure on the federal government.”[14] Even codification in a state constitution mainly “serves as ‘a constant headline,’ guiding lawmakers and reminding the public of its importance.”[15] In one dubious exception, an empirical study reported an association between the introduction of health care rights language into a state constitution and a decrease in infant mortality.[16] Acknowledging this counterexample, aspirational statements about a right to health care have generally served only to enshrine that some group found that right important.

II. DOES SJR 12 CREATE AN UNACHIEVABLE STATE OBLIGATION?

Others contend SJR 12 creates a legal obligation for the state. Julie Parrish, an Oregon state representative, asserts that SJR 12 goes further than any other state has “in constitutionalizing specific healthcare obligations.”[17] Specifically, Representative Parrish argues the phrase “any remedy arising from an action brought against the state”[18] “creates an individual private right of action against the state”[19] for failing to ensure universal access to healthcare. Likewise, Lorey Freeman, an attorney in the Oregon office of the legislative counsel, concluded that under SJR 12, the state “would be required to take steps to fulfill the right of each resident of Oregon to access health care.”[20] Finally, Health Care for All Oregon summarized the bill as “establishing a state obligation to ensure every Oregon resident has access to cost-effective, clinically appropriate, and affordable healthcare.”[21] In the voters’ pamphlet, the legislative argument in support of SJR 12 reinforces these assertions.[22] However, it also notes the measure “does not increase any taxes . . . because it does not make any changes to current health programs.”[23]

This tension reflects the significant barriers Oregon will face if a court should rule SJR 12 does create a legal obligation to provide universal health care. Absent a structural change, the state would be required, at a minimum, to ensure every Oregonian has health insurance. If the state could meet its obligation solely by extending Medicaid coverage to the 226,000 Oregonians currently without insurance,[24] the cost would be significant. The estimated monthly Medicaid cost per patient for 2023 is $507.90, resulting in a yearly cost to extend coverage to all of approximately $115 million per month.[25] Importantly, this assumes that those 226,000 Oregonians would accept Medicaid coverage satisfied their right to “cost-effective, clinically appropriate, and affordable” health care.[26] Moreover, even if this level of coverage did satisfy the state’s obligation, it is unlikely there are enough clinicians to provide the care.[27] Any reasonable attempt to address the provider shortage would likely balloon the cost of the program to a prohibitive level.[28] Finally, if solely providing universal Medicaid access was judged to not satisfy the state’s obligation, the costs would only increase further.

III. WHAT IS THE PATH FORWARD?

The Oregon legislature must quickly take action to clarify the implementation of SJR 12. If the goal of SJR 12 was to certify an aspirational statement, then the legislature should clarify that it created neither a legal obligation for the state, nor an individual right of action.[29] Ideally, the legislature should also state how it intends the statement to advance a constitutional right to health care. On the other hand, if the intention of SJR 12 was to create a legal obligation, further legislation is necessary to define the boundaries of that obligation. “[T]o state that there is a right to health care does not answer the question what form of ‘health care’ there is a right to.”[30] In addition, it is critical that the obligation defined by those boundaries be reasonably obtainable.

Healthcare in the United States is “complex and resistant to change.”[31] Even more, it is the most expensive health care system in the world.[32] Thus, absent fundamental, systematic change, “it is unacceptable to view a right to health care as a right to all possible medical techniques capable of being performed.”[33] Rather, in a functional plan, “[t]he level of care that is available will be determined by the level of resources devoted to producing it.”[34] As an example, the American Academy of Family Physicians (AAFP) has proposed a progressive plan to move the country toward health care for all.[35] More immediately, however, the plan proposes implementation of “a defined set of essential health benefits.”[36] It seems the AAFP understands that even though “fundamental change is required,”[37] such change can—indeed must—be achieved incrementally, even if, as the WHO has asserted, some changes can and should be implemented immediately.[38]

Neither aimless gestures, nor unbounded, impracticable obligations can secure a meaningful constitutional right to health care. Given the complexity of the health care system, incremental measures are needed. Such measures need defined terms, clear goals, and room to expand over time. The Oregon legislature must move to provide these for SJR 12. Immediate goals should include providing a clearly defined baseline of primary and preventative care, eliminating discrimination-based barriers, and increasing the number of primary care providers. The path to fundamental change is, unfortunately, difficult and slow, and the next logical step is an incremental one.

 

[1] Statewide Measures: Unofficial General Election November 8, 2022, Or. Sec. of State [hereinafter Statewide Measures], https://results.oregonvotes.gov/resultsSW.aspx?type=MEASURE&map=CTY [https://perma.cc/W477-UHN8].

[2] S.J. Res. 12, 81st Leg., Reg. Sess. (Or. 2021).

[3] Elections Div., Off. Of the Sec’y of State, Voters’ Pamphlet Oregon Gen. Election Nov. 8, 2022 at 64 (2022) [hereinafter Voters’ Pamphlet], https://oregonvotes.gov/voters-guide/english/votersguide.html [https://perma.cc/8PDQ-T24U].

[4] Dirk VanderHart, A Right to Health Care? It’s Headed to Oregon Ballots in 2022, Or. Pub. Broad. (May 19, 2021), https://www.opb.org/article/2021/05/19/oregon-health-care-constitutional-right [https://perma.cc/T9GA-VPHL].

[5] Voters’ Pamphlet, supra note 3, at 63.

[6] Letter from League of Women Voters of Oregon to Senate Health Care Committee (Feb. 15, 2021), https://olis.oregonlegislature.gov/liz/2021R1/Downloads/PublicTestimonyDocument/3888 [https://perma.cc/S4E3-VCAZ].

[7] Jamie Goldberg & Mark Friesen, What Oregon Ballot Measures are Drawing the Most Funding?, Governing (Sept. 30, 2022), https://www.governing.com/finance/what-oregon-ballot-measures-are-drawing-the-most-funding [https://perma.cc/8MJ2-WNKD].

[8] Constitution of the World Health Organization (1946), https://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf?ua=1 [https://perma.cc/3ADV-NZGX].

[9] Puneet K. Sandhu, A Legal Right to Health Care: What Can the United States Learn from Foreign Models of Health Rights Jurisprudence, 95 Calif. L. Rev. 1151, 1168 (2007) (noting an exception is South Africa’s constitution, which has a specific right to health care).

[10] Elizabeth Weeks Leonard, State Constitutionalism and the Right to Health Care, 12 U. Pa. J. Const. L. 1325, 1329 (2010).

[11] See, e.g., H.R.J. Res. 30, 110th Cong. (2007) (Jesse Jackson, Jr.); H.J.R. Res. 17, 116th Cong. (2019) (Betsy McCollum).

[12] See, e.g., Ill. Const. art. XI; Mont. Const. art. II, § 3; N.Y. Const. art. XVII, § 3.

[13] Jim Brunner, Ballot in Seattle to Contain Statement on Health, Seattle Times (Sept. 7, 2005), https://www.seattletimes.com/seattle-news/ballot-in-seattle-to-contain-statement-on-health [https://perma.cc/56R6-MFA2].

[14] Id.

[15] Leonard, supra note 10, at 1400.

[16] Hiroaki Matsuura, State Constitutional Commitment to Health and Health Care and Population Health Outcomes: Evidence from Historical US Data, 105 Am. J. Pub. Health e48, e51 (2015).

[17] Julie Parrish, Legal Implications and State Budget Ramifications if Voters Vote “YES” for Oregon Senate Joint Resolution 12 on Their November 2022 General Election Ballot, A.B.A. (Sept. 28, 2022), https://www.americanbar.org/groups/health_law/publications/aba_health_esource/2022-2023/september-2022/legal-implications-and-budget-ramifications-if-oregon-voters-vote-yes [https://perma.cc/3H86-Q56B].

[18] S.J. Res. 12, supra note 2.

[19] Parrish, supra note 17.

[20] VanderHart, supra note 4.

[21] Right to Health Care Measure 111, Health Care for All Or., https://www.hcao.org/hope-amendment-sjr12 [https://perma.cc/EG3P-Q2DF].

[22] Voters’ Pamphlet, supra note 3, at 63 (“Ensuring that everyone in the state has access to health care will help each individual survive”) (discussing how providing all Oregonians health coverage makes economic sense).

[23] Id.

[24] Parrish, supra note 17.

[25] OHP Rate Development, Or. Health Auth., https://www.oregon.gov/oha/HPA/ANALYTICS/Pages/OHP-Rates.aspx [https://perma.cc/PNQ6-Z5CE].

[26] An internal UnitedHealth survey of Medicaid patients found only 47% responded that they receive high-quality care. Medicaid as Seen Through the Eyes of Beneficiaries, United Healthcare, https://www.uhccommunityandstate.com/content/articles/medicaid-as-seen-through-the-eyes-of-beneficiaries [https://perma.cc/WSU7-UXZK]. Cited limitations of Medicaid include coverage limitations, limited health care provider options, and discriminatory treatment of patients by providers due to lower reimbursement rates. Allison Martin, Pros and Cons of Medicaid, Love to Know, https://insurance.lovetoknow.com/health-insurance/pros-cons-medicare-medicaid [https://perma.cc/PP7N-327V].

[27] Parrish, supra note 17 (discussing the shortage of nurses and physicians in Oregon); Lynne Terry, Oregon Medical Providers Rely on Diminishing Number of Out-of-State Nurses, Study Finds, Or. Cap. Chron. (Apr. 20, 2022), https://oregoncapitalchronicle.com/2022/04/20/study-oregon-medical-providers-rely-on-diminishing-number-of-out-of-state-nurses [https://perma.cc/2MGG-HRU6].

[28] For example, Oregon has an existing nursing shortage. Lynne Terry, As Nursing Shortage in Oregon Continues, Legislators Plan a Remedy, Or. Cap. Chron. (Feb. 15, 2022), https://oregoncapitalchronicle.com/2022/02/15/as-nursing-shortage-in-oregon-continues-legislators-plan-a-remedy [https://perma.cc/2MVW-47HB]. Even if the necessary number were available to hire, at an average salary of nearly $100,000 per year, addressing the existing need for nurses alone would cost over $250M per year. Average RN Salary in Oregon: See How Much OR Nurses Make in 2022, NurseJournal (Nov. 7, 2022), https://nursejournal.org/state/oregon/rn-salary [https://perma.cc/3WUL-Q2VP].

[29] How much of a mandate is created by that aspirational statement is unclear, given the narrow margin by which the measure passed. See Statewide Measures, supra note 1 (documenting the measure passed by a margin of 1.34% — 27,665 votes out of 1,860,635)

[30] Dieter Giesen, Health Care as a Right: Some Practical Implications, 13 Med. & L. 285, 290 (1994).

[31] What Makes Healthcare So Complicated? Answers Everyone with an MHA Degree Should Know, Walden Univ., https://www.waldenu.edu/online-masters-programs/master-of-healthcare-administration/resource/what-makes-healthcare-so-complicated [https://perma.cc/U6AR-9SSF].

[32] The Most Expensive Health Care System in the World, Harv. T.H. Chan Sch. of Pub. Health, https://www.hsph.harvard.edu/news/hsph-in-the-news/the-most-expensive-health-care-system-in-the-world [https://perma.cc/8PCM-HCYY].

[33] Giesen, supra note 30, at 291.

[34] President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, A Report on the Ethical Implications of Differences in the Availability of Health Services, Vol. One: Report 36 (1983), https://repository.library.georgetown.edu/bitstream/handle/10822/559375/securing_access.pdf?sequence=1&isAllowed=y [https://perma.cc/MWB2-GZ9E].

[35] American Academy of Family Physicians, Health Care for All: A Framework for Moving to a Primary Care-Based Health Care System in the United States, AAFP, https://www.aafp.org/about/policies/all/health-care-for-all.html# [https://perma.cc/4Y4Y-F9RB].

[36] Id.

[37] Id.

[38] Human Rights and Health, World Health Org. (Dec. 29, 2017), https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health [https://perma.cc/L9J4-HYUC] (“Regardless of resource capacity, the elimination of discrimination and improvements in the legal and judicial systems must be acted upon with immediate effect.”).