Right to Healthcare

 

In the last election, a majority of voters in Oregon chose to add a right to affordable healthcare to the state constitution, the first state in the nation to do so. It is short and simple:

SECTION 47. (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.

It must have been written by trial lawyers. There will be endless litigation. There was already a movement in the state for statewide single-payer health care. This will inevitably lead to it. I predict it will cost the state untold billions of dollars. California can afford expensive, crazy stuff because they get so much money from Silicon Valley billionaires and millionaires. Oregon can’t. The tax burden will fall on the middle class.

I am a fifth-generation Oregonian and I love my state, but I can’t abide the direction it has taken. I stay only to be close to my family (generations six and seven). I can only hope that I die before healthcare goes totally in the toilet.

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  1. Hoyacon Member
    Hoyacon
    @Hoyacon

    This should lead to health care providers exiting the state.  I suppose we’ll see.

    • #1
  2. Al French Moderator
    Al French
    @AlFrench

    @rushbabe the tag is for you. Beat that, Washington!

    • #2
  3. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    I saw that in the news.  Please note the wording, “access to” affordable healthcare as a fundamental right.  Not a right to care, but a right to access to care.  It’s actually an amendment that approves the return of de jure slavery.  Health care always involves someone else’s labor on your behalf, and if you have a “right” to someone else’s labor, then they are your slave.  They must expend effort on your behalf whether they want to or not.  Actually, it makes everyone in the state a slave, because the health-care providers are people too, with their own doctors, nurses, and pharmacists.

    I do see your endless litigation coming.  And I’m sure that Washington will be observing what happens in Oregon, in preparation for following along.

    • #3
  4. Al French Moderator
    Al French
    @AlFrench

    The voters also passed a gun control measure, but that is subject of another post.

    • #4
  5. Django Member
    Django
    @Django

    Hoyacon (View Comment):

    This should lead to health care providers exiting the state. I suppose we’ll see.

    I’m not a lawyer so I may have this wrong, but I thought that there were supposed to be legal remedies when fundamental rights are violated or abridged. What will the remedy be? Suppose doctors simply move to other states and health care is no longer available in Oregon. Can the doctors or health care providers be sued for violating the right of Oregon’s citizens to health care? 

    On a broader note, what gives anyone the right to the time and labor of another human being? 

    • #5
  6. kedavis Coolidge
    kedavis
    @kedavis

    Some court in Canada already has ruled that “access to a waiting list is not access to health care” but maybe Oregon will have to do the waiting-lists things first too.

    • #6
  7. Flicker Coolidge
    Flicker
    @Flicker

    Just out of curiosity, what’s the difference between healthcare and medical care?

    And what’s the difference between health insurance and medical insurance.

    And if healthcare is a right, does that mean that someone can compel another to provide it?

    • #7
  8. Hoyacon Member
    Hoyacon
    @Hoyacon

    Django (View Comment):

    Hoyacon (View Comment):

    This should lead to health care providers exiting the state. I suppose we’ll see.

    I’m not a lawyer so I may have this wrong, but I thought that there were supposed to be legal remedies when fundamental rights are violated or abridged. What will the remedy be? Suppose doctors simply move to other states and health care is no longer available in Oregon. Can the doctors or health care providers be sued for violating the right of Oregon’s citizens to health care?

    Doubtful.  That would be a restriction on interstate commerce.  Vote with your feet.

    On a broader note, what gives anyone the right to the time and labor of another human being?

    Nothing.  I suspect that the concept was sufficiently questionable that its backers thought putting it in the constitution would make it less vulnerable than just making it a law.  My guess is that it is still open to challenge as being in conflict with the US Constitution, but that’s only a guess.

     

    • #8
  9. Django Member
    Django
    @Django

    Hoyacon (View Comment):

    Django (View Comment):

    Hoyacon (View Comment):

    This should lead to health care providers exiting the state. I suppose we’ll see.

    I’m not a lawyer so I may have this wrong, but I thought that there were supposed to be legal remedies when fundamental rights are violated or abridged. What will the remedy be? Suppose doctors simply move to other states and health care is no longer available in Oregon. Can the doctors or health care providers be sued for violating the right of Oregon’s citizens to health care?

    Doubtful. That would be a restriction on interstate commerce. Vote with your feet.

    So there would be no remedy? What would be the point of declaring the right? Buying votes from the gullible? 

    • #9
  10. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    The wording of that amendment is nice and weaselly, giving the state lots of emergency exits.

    1. The sneaky use of the term “cost-effective”. It doesn’t specify for whom it is to be cost-effective.  Voters may have thought it meant cost-effective for the resident, but it can easily be interpreted as cost-effective for the state, and the state is the one that gets to define what “cost-effective” means.
    2. The second clause basically means, “unless it’s so expensive that we have to reallocate funds from other parts of the budget”, which it almost certainly will.

    From what I’ve read about Oregon’s current health care system, I don’t see how this amendment changes the state’s obligations one iota.  It’s constitutional theatre.

    Of course, I’m not a lawyer…

    • #10
  11. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    Django (View Comment):

    Hoyacon (View Comment):

    This should lead to health care providers exiting the state. I suppose we’ll see.

    I’m not a lawyer so I may have this wrong, but I thought that there were supposed to be legal remedies when fundamental rights are violated or abridged. What will the remedy be? Suppose doctors simply move to other states and health care is no longer available in Oregon. Can the doctors or health care providers be sued for violating the right of Oregon’s citizens to health care?

    On a broader note, what gives anyone the right to the time and labor of another human being?

    Another way that the wording of the amendment is nice and weaselly is how it doesn’t say that Oregon’s doctors and/or other health care providers have an obligation to deliver affordable health care.  It only says that the state has an obligation to ensure that people have access to affordable health care.

    The state already funds public hospitals. Ergo, Oregon residents already have “access” to affordable health care.  It may not provide a level of care that residents prefer, but the amendment doesn’t say that residents have a right to their preferred level of health care.  The available affordable health care might not be located conveniently nearby or be available at convenient times, but the amendment doesn’t say that those considerations are guaranteed.

    The state could theoretically cut public health care down to a single homeopath and still conform with the literal wording of the amendment.

    It’s an utterly toothless amendment. Political theatre.

    • #11
  12. Al French Moderator
    Al French
    @AlFrench

    Flicker (View Comment):

    Just out of curiosity, what’s the difference between healthcare and medical care?

    And what’s the difference between health insurance and medical insurance.

    And if healthcare is a right, does that mean that someone can compel another to provide it?

    All grist for the trial lawyers mill.

    • #12
  13. Hoyacon Member
    Hoyacon
    @Hoyacon

    Django (View Comment):

    Hoyacon (View Comment):

    Django (View Comment):

    Hoyacon (View Comment):

    This should lead to health care providers exiting the state. I suppose we’ll see.

    I’m not a lawyer so I may have this wrong, but I thought that there were supposed to be legal remedies when fundamental rights are violated or abridged. What will the remedy be? Suppose doctors simply move to other states and health care is no longer available in Oregon. Can the doctors or health care providers be sued for violating the right of Oregon’s citizens to health care?

    Doubtful. That would be a restriction on interstate commerce. Vote with your feet.

    So there would be no remedy? What would be the point of declaring the right? Buying votes from the gullible?

    That, virtue signaling, and the hope that providers, or at least some, will stay put.   The question also arises as to the enforcement mechanism.  It’s possible that this is “symbolic” and no one is actually going to determine what is affordable.  An added complication is that affordability is generally tied to one’s insurance status, so what is affordable for one may not be for another.  I  have not followed this and am very far away, so take this FWIW.

    • #13
  14. Al French Moderator
    Al French
    @AlFrench

    Misthiocracy has never (View Comment):

    Django (View Comment):

    Hoyacon (View Comment):

    This should lead to health care providers exiting the state. I suppose we’ll see.

    I’m not a lawyer so I may have this wrong, but I thought that there were supposed to be legal remedies when fundamental rights are violated or abridged. What will the remedy be? Suppose doctors simply move to other states and health care is no longer available in Oregon. Can the doctors or health care providers be sued for violating the right of Oregon’s citizens to health care?

    On a broader note, what gives anyone the right to the time and labor of another human being?

    Another way that the wording of the amendment is nice and weaselly is how it doesn’t say that Oregon’s doctors and/or other health care providers have an obligation to deliver affordable health care. It only says that the state has an obligation to ensure that people have access to affordable health care.

    The state already funds public hospitals. Ergo, Oregon residents already have “access” to affordable health care. It may not provide a level of care residents might prefer, but the amendment didn’t say that residents have a right to their preferred level of health care. The available affordable health care might not be located conveniently nearby or be available at convenient times, but the amendment doesn’t say that those considerations are guaranteed.

    The state could theoretically cut public health care down to a single homeopath and still conform with the wording of the amendment.

    It’s an utterly toothless amendment. Political theatre.

    Might be. We’ll see. But the litigation will be before an extremely progressive judiciary.

    • #14
  15. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    Flicker (View Comment):
    Just out of curiosity, what’s the difference between healthcare and medical care?

    Medical care is provided by doctors.

    Health care is provided by the panoply of health care providers, all the way from doctors to massage therapists to dieticians to retirement homes to physiotherapists to midwives to chiropodists etc. etc. etc.

    Which leads to the next bit of nicely weaselly wording: Who decides what is “clinically-appropriate”?

    Theoretically, a doctor could say a person needs surgery to remove a tumour, and the state could say that their clinician says that acupuncture would be more appropriate.  So it’ll go to a judge to rule which clinician has the ultimate authority to define what’s appropriate, and one might wonder what expertise a judge has to make such a ruling.

    Theatre.

    • #15
  16. kedavis Coolidge
    kedavis
    @kedavis

    Al French (View Comment):

    Misthiocracy has never (View Comment):

    Django (View Comment):

    Hoyacon (View Comment):

    This should lead to health care providers exiting the state. I suppose we’ll see.

    I’m not a lawyer so I may have this wrong, but I thought that there were supposed to be legal remedies when fundamental rights are violated or abridged. What will the remedy be? Suppose doctors simply move to other states and health care is no longer available in Oregon. Can the doctors or health care providers be sued for violating the right of Oregon’s citizens to health care?

    On a broader note, what gives anyone the right to the time and labor of another human being?

    Another way that the wording of the amendment is nice and weaselly is how it doesn’t say that Oregon’s doctors and/or other health care providers have an obligation to deliver affordable health care. It only says that the state has an obligation to ensure that people have access to affordable health care.

    The state already funds public hospitals. Ergo, Oregon residents already have “access” to affordable health care. It may not provide a level of care residents might prefer, but the amendment didn’t say that residents have a right to their preferred level of health care. The available affordable health care might not be located conveniently nearby or be available at convenient times, but the amendment doesn’t say that those considerations are guaranteed.

    The state could theoretically cut public health care down to a single homeopath and still conform with the wording of the amendment.

    It’s an utterly toothless amendment. Political theatre.

    Might be. We’ll see. But the litigation will be before an extremely progressive judiciary.

    And it’s not like the money comes from the judges’ pockets.

    • #16
  17. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    Flicker (View Comment):
    And if healthcare is a right, does that mean that someone can compel another to provide it?

    The amendment says that the state has an obligation to “ensure access”.

    So, let’s say that a judge rules that the state has failed in that obligation. So what? The amendment does not specify the consequences for failing to meet the obligation. Maybe the judge orders the state to pay the resident damages, but that’s all I can see happening.  The amendment says nothing about the obligations of health care providers, nor does it grant the state any new powers.  

    You might as well pass an amendment saying that the state has an obligation to “end violence” or “ensure world peace”.  Without granting the state any new powers the amendment is meaningless.

    • #17
  18. kedavis Coolidge
    kedavis
    @kedavis

    Misthiocracy has never (View Comment):

    Flicker (View Comment):
    And if healthcare is a right, does that mean that someone can compel another to provide it?

    The amendment says that the state has an obligation to “ensure access”.

    So, let’s say that a judge rules that the state has failed in that obligation. So what? The amendment does not specify the consequences for failing to meet the obligation. Maybe the judge orders the state to pay the resident damages, but that’s all I can see happening. The amendment says nothing about the obligations of health care providers, nor does it grant the state any new powers.

    You might as well pass an amendment saying that the state has an obligation to “end violence” or “ensure world peace”. Without granting the state any new powers the amendment is meaningless.

    That’s where the bureaucrats come in.

    • #18
  19. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    kedavis (View Comment):

    Some court in Canada already has ruled that “access to a waiting list is not access to health care” but maybe Oregon will have to do the waiting-lists things first too.

    Yabbut, the point of the court’s ruling in that case was that Quebec’s provincial government does not have the authority to ban private health care. If access to health care is a right, then it follows that the provincial government cannot ban forms of health care that it dislikes.  In other words, the ruling guaranteed that the provincial government cannot compel doctors to work in the public system, because that would limit Quebeckers’ ability to access private health care if that’s the form of health care they prefer.

    For technical reasons, the ruling only applies to Quebec.

    https://en.wikipedia.org/wiki/Chaoulli_v_Quebec_(AG)

    Note: The ruling depended on the Quebec Charter of Rights and Freedoms‘ guarantee of the “right to life” and the “right to security of the person”.  No such rights are enumerated in the US Constitution, nor are they enumerated in the Oregon State Constitution.

    • #19
  20. Django Member
    Django
    @Django

    Misthiocracy has never (View Comment):

    Flicker (View Comment):
    And if healthcare is a right, does that mean that someone can compel another to provide it?

    The amendment says that the state has an obligation to “ensure access”.

    So, let’s say that a judge rules that the state has failed in that obligation. So what? The amendment does not specify the consequences for failing to meet the obligation. Maybe the judge orders the state to pay the resident damages, but that’s all I can see happening. The amendment says nothing about the obligations of health care providers, nor does it grant the state any new powers.

    You might as well pass an amendment saying that the state has an obligation to “end violence” or “ensure world peace”. Without granting the state any new powers the amendment is meaningless.

    It will be interesting to see how far the state will go, or attempt to go, in its efforts to ensure access. 

    • #20
  21. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    Flicker (View Comment):
    And if healthcare is a right, does that mean that someone can compel another to provide it?

    Not according to the Thirteenth Amendment.

    However, a judge could theoretically order the state to compensate someone that convinces the judge that the state failed in its obligation to “ensure access” to “affordable” and “clinically-appropriate” health care.

    As mentioned, this amendment is a boon for trial lawyers, and one may be forgiven for wondering if that wasn’t the whole point for the thing in the first place.

    • #21
  22. Zafar Member
    Zafar
    @Zafar

    What does ‘access’ mean?  If it means being insured:

    About half of Oregon residents are insured through their employer, and about one-third are insured through the Oregon Health Plan, the state’s version of free Medicaid coverage. Only about 150,000 people have individual policies through the federal marketplace, and less than 1 million are covered by Medicare, which insures people 65 and over and those with disabilities. Currently, about 6% of Oregonians are uninsured. 

    Which seems doable.

    How do you define affordable? 

    Do you achieve it by increasing the number of public hospitals and clinics where care is cheaper or free?  By broadening eligibility for the Oregan Health Plan? By increasing competition for health providers by licensing more?

    Right now Oregon has a higher than median number of physicians per 100,000 people for US states, but also has longer wait times in ER.

    • #22
  23. Al French Moderator
    Al French
    @AlFrench

    Zafar (View Comment):

    How do you define affordable? 

    Do you achieve it by increasing the number of public hospitals and clinics where care is cheaper or free?  By broadening eligibility for the Oregan Health Plan? By increasing competition for health providers by licensing more?

    Right now Oregon has a higher than median number of physicians per 100,000 people for US states, but also has longer wait times in ER.

    Oregon has one of the lowest ratios of hospital beds per 100,000 population in the nation, likely because of its certificate of need law.

    • #23
  24. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    kedavis (View Comment):

    Misthiocracy has never (View Comment):

    Flicker (View Comment):
    And if healthcare is a right, does that mean that someone can compel another to provide it?

    The amendment says that the state has an obligation to “ensure access”.

    So, let’s say that a judge rules that the state has failed in that obligation. So what? The amendment does not specify the consequences for failing to meet the obligation. Maybe the judge orders the state to pay the resident damages, but that’s all I can see happening. The amendment says nothing about the obligations of health care providers, nor does it grant the state any new powers.

    You might as well pass an amendment saying that the state has an obligation to “end violence” or “ensure world peace”. Without granting the state any new powers the amendment is meaningless.

    That’s where the bureaucrats come in.

    Bureaucrats cannot grant a state new powers. They can stretch the powers of the state to the near-breaking point as long and no judge rules that they’ve crossed the line, but they could already do that without any need for a constitutional amendment.  

    Only the people can grant a state new powers (and even then only within the limits of the US Constitution), and according to the text of this amendment the people of Oregon refrained from doing so.

    • #24
  25. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    Zafar (View Comment):

    What does ‘access’ mean? If it means being insured:

    About half of Oregon residents are insured through their employer, and about one-third are insured through the Oregon Health Plan, the state’s version of free Medicaid coverage. Only about 150,000 people have individual policies through the federal marketplace, and less than 1 million are covered by Medicare, which insures people 65 and over and those with disabilities. Currently, about 6% of Oregonians are uninsured.

    Which seems doable.

    How do you define affordable?

    Do you achieve it by increasing the number of public hospitals and clinics where care is cheaper or free? By broadening eligibility for the Oregan Health Plan? By increasing competition for health providers by licensing more?

    Right now Oregon has a higher than median number of physicians per 100,000 people for US states, but also has longer wait times in ER.

    The amendment does not say that Oregon is obligated to increase access to affordable health care.  It only says that Oregon is obligated to ensure access to affordable health care.  How much access must be ensured is not defined by the amendment.

    • #25
  26. Zafar Member
    Zafar
    @Zafar

    Al French (View Comment):

    Zafar (View Comment):

    How do you define affordable?

    Do you achieve it by increasing the number of public hospitals and clinics where care is cheaper or free? By broadening eligibility for the Oregan Health Plan? By increasing competition for health providers by licensing more?

    Right now Oregon has a higher than median number of physicians per 100,000 people for US states, but also has longer wait times in ER.

    Oregon has one of the lowest ratios of hospital beds per 100,000 population in the nation, likely because of its certificate of need law.

    It surprised me how many states have these.  I can’t immediately see a consistent correlation between these and the ER wait times?

    • #26
  27. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    Zafar (View Comment):

    Al French (View Comment):

    Zafar (View Comment):

    How do you define affordable?

    Do you achieve it by increasing the number of public hospitals and clinics where care is cheaper or free? By broadening eligibility for the Oregan Health Plan? By increasing competition for health providers by licensing more?

    Right now Oregon has a higher than median number of physicians per 100,000 people for US states, but also has longer wait times in ER.

    Oregon has one of the lowest ratios of hospital beds per 100,000 population in the nation, likely because of its certificate of need law.

    It surprised me how many states have these. I can’t immediately see a consistent correlation between these and the ER wait times?

    Certificate of Need laws give the State the power to approve any and all health-care facilities, especially hospitals.  Those laws serve mostly to reduce competition among hospitals, and preserve the fiefs of existing large hospital systems.  The State determines the “need” or not, for new facilities, ensuring that no additional ER beds are made available for epidemics or natural disasters.

    • #27
  28. Zafar Member
    Zafar
    @Zafar

    RushBabe49 (View Comment):

    It surprised me how many states have these. I can’t immediately see a consistent correlation between these and the ER wait times?

    Certificate of Need laws give the State the power to approve any and all health-care facilities, especially hospitals.  Those laws serve mostly to reduce competition among hospitals, and preserve the fiefs of existing large hospital systems.  The State determines the “need” or not, for new facilities, ensuring that no additional ER beds are made available for epidemics or natural disasters.

    Is the objective to discourage over-servicing by hospitals, to ensure that all beds turn a profit, even when they aren’t necessary to patient recovery?

    • #28
  29. kedavis Coolidge
    kedavis
    @kedavis

    RushBabe49 (View Comment):

    Zafar (View Comment):

    Al French (View Comment):

    Zafar (View Comment):

    How do you define affordable?

    Do you achieve it by increasing the number of public hospitals and clinics where care is cheaper or free? By broadening eligibility for the Oregan Health Plan? By increasing competition for health providers by licensing more?

    Right now Oregon has a higher than median number of physicians per 100,000 people for US states, but also has longer wait times in ER.

    Oregon has one of the lowest ratios of hospital beds per 100,000 population in the nation, likely because of its certificate of need law.

    It surprised me how many states have these. I can’t immediately see a consistent correlation between these and the ER wait times?

    Certificate of Need laws give the State the power to approve any and all health-care facilities, especially hospitals. Those laws serve mostly to reduce competition among hospitals, and preserve the fiefs of existing large hospital systems. The State determines the “need” or not, for new facilities, ensuring that no additional ER beds are made available for epidemics or natural disasters.

    On the other hand, private/free enterprise isn’t likely to have much spare capacity for emergencies either.  Why would they?  There’s no money in it, most of the time.

    I’ve long thought that something I saw in Arizona a few times, made sense.  Old/closed hospitals were sometimes taken over by the county or the state and kept functionally ready for use in an emergency, but with very minimal full-time staffing.  In a real emergency it would be easier to find prepared staff than to find prepared buildings etc.

    • #29
  30. kedavis Coolidge
    kedavis
    @kedavis

    Zafar (View Comment):

    RushBabe49 (View Comment):

    It surprised me how many states have these. I can’t immediately see a consistent correlation between these and the ER wait times?

    Certificate of Need laws give the State the power to approve any and all health-care facilities, especially hospitals. Those laws serve mostly to reduce competition among hospitals, and preserve the fiefs of existing large hospital systems. The State determines the “need” or not, for new facilities, ensuring that no additional ER beds are made available for epidemics or natural disasters.

    Is the objective to discourage over-servicing by hospitals, to ensure that all beds turn a profit, even when they aren’t necessary to patient recovery?

    In a static situation they might figure that it helps keep more separate facilities open, but that does nothing to address possible emergency needs.

    • #30
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