Debating Health Care As a Right

By Winthrop Quigley, Journal Staff Writer
Albuquerque Journal, Feb. 12, 2012

The question is asked with regularity at legislative and congressional hearings, medical and public health conferences, political rallies and policy think tanks: Is health care a right, or a privilege?

Sen. Jerry Ortiz y Pino, an Albuquerque Democrat, long ago decided that health care is a right and that insurance company profit-making prevents people from enjoying that right.

For the second year in a row, Ortiz y Pino has introduced legislation to put the question to a popular vote.

If he’s successful, New Mexico’s Constitution would be amended to say, “Health care is a fundamental right that is an essential safeguard of human life and dignity. The state shall ensure that every resident has the opportunity to realize this right by establishing a comprehensive system of quality health care that is accessible to each resident on an equitable basis regardless of ability to pay.”

Identical legislation was introduced in the House by Rep. Gail Chasey, D-Albuquerque.

The cost of a comprehensive state-wide health system would range from $11 billion to $16 billion a year, more than twice the entire state budget, which already includes substantial spending on health care, according to insurance company lobbyists who testified against the proposal at a Senate Rules Committee hearing last week.

They argued that comprehensive health care has to be provided at the national level and that the federal Affordable Care Act has addressed the issue.

The proposed constitutional amendment needs to secure a majority vote in both houses of the Legislature and must be ratified by a majority of the voters to become effective. Unlike other legislation, proposed constitutional amendments do not need the governor’s signature, though a spokesman for Gov. Susana Martinez said she opposes the amendment.

No legal effect

Robert L. Schwartz, a University of New Mexico law professor and health law expert, said the amendment, however, would have no meaningful legal effect. Former state Health Secretary Alfredo Vigil, a practicing physician, said it wouldn’t change how the state Health Department goes about its business in any noticeable way.

Even Ortiz y Pino doesn’t believe the amendment would force state government to do anything, which raises yet another question. Why bother?

“Because it is a constitutional amendment, there would have to be a discussion of the issue leading up to a vote,” Ortiz y Pino said. “That would be healthy, I think, to get people talking about it.

“It would change the way we budget,” he continued. “We think in terms of a patchwork quilt of health programs. This would create an opportunity for us to step back and look at health care as a system, something that takes care of the basic health needs of all New Mexicans. It shifts the debate from asking how we are going to pay for programs to asking if we should be doing something different.”

Ortiz y Pino said there is no need for a financial argument. “I was listening to the insurance company lobbyists, and I wanted to scream,” he said. “The whole point of this is to get away from how do we pay your plans’ premiums and make sure your approach will continue in perpetuity to how do we get away from having any reliance on you guys at all. That’s what it’s about.”

Trying to ‘raise the bar’

Bruce Trigg, a retired Health Department employee and a practicing physician, asked Ortiz y Pino to sponsor the resolution on behalf of the Network of Health Professionals for a National Health Program.

“We’re trying to raise the bar,” Trigg said. “We’re trying to set an ethical standard. We’re putting up with more uninsured people than we could have imagined 20 years ago. This is a truly pro-life bill. It recognizes that all human beings are valued and society has a responsibility to take care of them to the best of our ability.”

Trigg said the idea is not to create a mandate: “It’s something we will work toward.”

Martinez believes the amendment will have bigger teeth than that. Her spokesman, Scott Darnell, said, “According to analysis from our office, this resolution would require the establishment of a government-run health care system that the governor has made very clear she does not support. Not only would the cost of a government run health care system break the state financially, but it could decrease the quality of health care as well.”

Schwartz said the amendment is an example of what he called an aspiration statement, and legal documents are full of them. The New Mexico Constitution already says citizens have a right to seek and obtain happiness. The International Covenant on Economics, Social and Cultural rights, passed by the United Nations in 1966 and signed by the United States, recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

The health-as-a-right amendment “is not truly enforceable in any way, any more than the right to achieve happiness is enforceable,” Schwartz said.

That doesn’t mean it’s a pointless exercise.

‘An important goal’

“An aspirational statement serves an important goal,” Schwartz said. “It says that we as a society have an obligation to provide at least some minimal amount of health care. I don’t think that is unreasonable or impossible. We ought to aspire to do that.”

Health plans and physicians seem to share the aspiration. Lovelace Health Plan CEO Ben Slocum and Presbyterian Healthcare Services CEO Jim Hinton said they have no problem with the principle of affordable, universal access to health care.

Jeremy Gleeson, a physician with ABQ Health Partners and president of the Greater Albuquerque Medical Association, said GAMA has taken no position on the amendment, but that he supports “the concept that health is a fundamental right, as this constitutional amendment seems to be suggesting.

“I’m not sure how it can be implemented in any practical, useful way to get to that point,” he said. “The concept is nice. Most doctors would agree with the concept that health care is a right, though there are some libertarian doctors who would say it’s something you have to pay for.”

Former Health Secretary Alfredo Vigil applauds the concept as well, but also cautions not to count on state government to revolutionize health care.

What would happen?

Vigil provided two answers to the question of what would happen at the Health Department the day after a health care rights amendment was in force.

“The nice answer is the health secretary would rally the troops at the department and attempt to rally his or her supervisors at the Roundhouse and say it’s time to renew our efforts at creating priorities and strategies to improve the health of the people of the state of New Mexico. The honest answer is it wouldn’t do a damn thing.”

“The state of New Mexico has never had enough money to do even its most critical functions,” Vigil said. “It won’t be different for the indefinite future. Besides money, it has to do with time. The Legislature and the governor and the critical people running the show only have 24 hours a day, like everyone else. All the other issues are clamoring for time as much as health is.”

Vigil said that if the state wanted to create a comprehensive health care system, someone like a health secretary would have to be given the permission, time and money to create a system from scratch, since the existing system isn’t the answer.

“Ninety-nine percent of your energy is spent on convincing people who supposedly are on the same side of the fence that you are, then putting on a suit of armor and going to the other side of the fence to deal with people who hate you because you’re from the other side of the fence. You can’t discuss anything without venom and hostility and anger. The result is the proposals that get thrown out tend not to be serious. They are either waving a flag from your side of the fence or sticking someone on the other side of the fence in the eye.”

This article appeared on page A1 of the Albuquerque Journal.