By Emma Bowar, LLB Student International & European Law, e.bowar student.rug.nl

Almost famously, the health care system in the United States is broken. Americans spend more on healthcare than other high-income states while doing worse than them with regard to key indicators: they have a lower life expectancy, and the highest rates of hospitalization for preventable causes such as diabetes. ^[1] Beyond these issues, the American healthcare system is also characterized by unequal access: African-Americans are more likely to be uninsured than white Americans, and African-American women are three times more likely to die from pregnancy related issues than white women. Plainly, the right to health in the US is nothing but a fever dream. More interestingly, it will be considered in the following paragraphs if American’s have any legal recourse under the framework of international law, and the extent to which the principle of non-discrimination is implemented in the US healthcare system.

There are about 7 international treaties which confer upon people the right to health, chief amongst those being the International Covenant on Economic, Social and Cultural Rights (ICESCR). ^[2] The US has not ratified ICESCR, and in fact, of all 7 treaties which contain a recognized right to health, has only ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). In art. 5(e)(iv) of CERD, the US is obliged to undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee to everyone, without distinction as to race, color or national or ethnic origin the right to public health and medical care. This cannot really be construed as a right to health as such, but rather an obligation to prevent racial discrimination in the healthcare system. As the figures mentioned above illustrate, the US cannot be considered to be meeting this standard. Unfortunately, the US has not accepted the procedure under article 14 CERD, which would allow individuals to submit complaints to the treaty Committee for review. As such, individuals living in the US do not have access to the UN treaty based system, which although not binding, would allow them to illuminate the difficulties associated with the US healthcare system.

The extent to which the principle of non-discrimination is present in the US healthcare system requires a more careful examination. Firstly, it should be established that racial discrimination is not the only form of discrimination prevalent in the provision of healthcare: 18% of women in the US reported experiencing gender based discrimination in the healthcare system, and the stigmatization of HIV is considered to be a contributing factor to low usage levels of Pre-exposure Prophylaxis in the US. ^[3] As much as the problem persists, the principle of non-discrimination offers more to US citizens, in terms of international legal recourse. The US is party to and has ratified the International Covenant on Civil and Political Rights (ICCPR), art. 26 of which states that all persons are equal before the law and entitled, without discrimination, to equal protection before the law. The US has not ratified the Optional Protocol of the ICCPR which would allow for individuals to submit complaints to the Human Rights Committee, so people in the US cannot pursue non-discrimination in that vein. In addition, although under US law self-executing treaties are automatically applicable and can be invoked before domestic courts, the US has declared the ICCPR to be non-self-executing, and as such, art. 26 ICCPR cannot be invoked before the US courts. However, as per Title II, sec. 201(a) of the Civil Rights Act of 1964, all persons are entitled to full and equal enjoyment of services, without discrimination. This rule can be seen as giving life to the principle of non-discrimination within the US’s domestic legal system, and would be the most suitable piece of legislation to pursue non-discrimination and equality within the US’s healthcare system. Title II, sec. 201(a) Civil Rights Act should not however be construed as domestic legislation implementing the ICCPR, as it was in fact passed before the US ratified the ICCPR, in response to domestic circumstances.

As discussed, the right to health does not exist in the US legal system, as it is not contained in its domestic law, nor has the US accepted such an obligation under international law. The US has accepted the obligation to provide a non-discriminatory health care system, by ratifying the CERD. Nevertheless, the principle of non discrimination cannot be invoked before US courts on the basis of the treaty alone. Rather, the principle of non-discrimination is applicable to the US healthcare system on the basis of the Civil Rights Act of 1964 Title II Sec. 201(a), and it is via this legislation that patients in the US healthcare system would be most served when attempting to advocate for non-discrimination or equal treatment.

^[1] R Tikkanen and MK Abrams, ‘U.S. Health Care from a Global Perspective, 2019: Higher Spending, Worse Outcomes?’ (Issue Briefs, The Commonwealth Fund, 30 January 2020) <https://www.commonwealthfund.org/publications/issue-briefs/2020/jan/us-health-care-global-perspective-2019?gclid=Cj0KCQjw7pKFBhDUARIsAFUoMDbVZBN2PrzOlYBZvEe8qGs1PvCiAAxHemHZb_FjjCnAbSdQ0LSPChYaAmLYEALw_wcB> accessed 14 December 2021; D Squires and C Anderson, ‘U.S. Health Care from a Global Perspective: Spending, Use of Services, Prices, and Health in 13 Countries’ (Issue Briefs, The Commonwealth Fund, 8 October 2015) < https://www.commonwealthfund.org/publications/issue-briefs/2015/oct/us-health-care-global-perspective> accessed 14 December 2021.

^[2] OHCHR ‘Fact Sheet No. 31, The Right to Health’, June 2008, No. 31.

^[3] Centers for Disease Control Prevention ‘Pre-Exposure Prophylaxis’ (CDC, August 2021) <https://www.cdc.gov/hiv/risk/prep/index.html> accessed November 12.