Dynamics of Healthcare Reform: Bitter Pills Old and New

Article excerpt

ABSTRACT

The United States is at a crossroads--albeit one it has visited several times before. Although the Supreme Court has ruled upon the constitutionality of the Patient Protection and Affordable Care Act, the polarizing controversy surrounding national healthcare that began several generations ago is likely to continue into the foreseeable future. In this latest round of national debates, the issue of healthcare has been framed exclusively as a domestic issue. But history shows that the question of national healthcare in the United States has also been an extremely important issue for international law and international politics. To shed light on the overlooked nexus between the Act, U.S. constitutional law, and international human rights law, this Article examines the debates surrounding healthcare and human rights that occupied the nation's attention over six decades ago.

In the late 1940s, the controversy over President Harry Truman's national healthcare plan became known as the nation's "Great Debate." But because Truman's plan never actually became law, this episode of U.S. history has largely escaped the attention of legal scholars. This mid-century debate over healthcare reform has had a profound impact on contemporary domestic and international legal institutions. This Article reveals how, beginning in 1948, the debate over healthcare set in motion a series of political precedents, social practices, and legal interpretations that have influenced every subsequent battle over U.S. healthcare. But in particular, this early debate over healthcare was an important factor in the historic decision in 1952 to divide the Covenant on Human Rights into the two treaties we have today--the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. THE LIMITS OF THE U.S. CONSTITUTION
III. THE OPPOSITION FORMS
     A. International Support/Domestic
        Opposition
     B. The Campaign Blitz
     C. Keeping Socioeconomic Rights Out
     D. Domestic Opponents/International
        Treaties
     E. A Legal Sleight of Hand
 IV. RIGHTS EMERGE FROM STRUGGLE
  V. CONCLUSION

I. INTRODUCTION

The Supreme Court has decided upon the constitutionality of the Patient Protection and Affordable Care Act. The issue of national healthcare is one of the most controversial and often replayed civic debates in U.S. history. This Article explores President Harry Truman's effort to enact his national healthcare plan during the late 1940s and early 1950s. The bitter controversy that emerged U.S. exceptionalism that are taken for granted today: (1) the reluctance to view access to healthcare as a universal right and (2) the rejection of incorporating international human rights into U.S. domestic law. (1) But because Truman's plan never actually became law, this episode of U.S. history has largely escaped the attention of legal scholars.

Overlooking this legal history is a mistake for two reasons. First, while Truman's plan never ended up as law, this does not mean that the underlying social and political struggles are in any way inconsequential for contemporary law and policy. For example, this particular historical controversy ushered in a new era of politics that transformed the way such battles were fought. In the late 1940s and early 1950s, private-interest groups on this issue raised unprecedented sums of money and developed a practice that is now de rigueur in political battles: the negative media blitz. Opponents of healthcare reform saturated the airwaves, packaging fear and vitriol into media-friendly bundles of distorted information. Indeed, these debates over healthcare set in motion a series of political precedents, social practices, and legal interpretations that have influenced every subsequent battle over U.S. healthcare.

Second, the debate over national healthcare actually was a factor in the development of law--international human rights law. …