Oregon voters could make healthcare a constitutional right in 2022

Oregon voters could make healthcare a constitutional right in 2022

Oregon is poised in November to become the first state to enshrine the concept of healthcare as a human right in its constitution — a step that, on its face, is fundamentally at odds with the American approach to medical care.

The twist? No one is paying attention. The bruising battle last year to get the proposal onto Oregon’s 2022 ballot has given way to a contentious three-way governor’s race, hard-fought congressional battles, and a thriving debate over ballot measures on gun permits and slavery (yes, slavery). While the healthcare proposal is explicitly hedged to limit its costs, its passage would mark one of the most radical health policies in the US, at least symbolically, since the arrival of the Affordable Care Act.

Called Measure 111, the proposal would “ensure that every resident of Oregon has access to cost-effective, clinically appropriate and affordable healthcare as a fundamental right.” While just over one dozen states have constitutions or laws that vaguely mention general welfare, care for the indigent or public health as duties, the Oregon measure would be the first to write healthcare itself into a state constitution as a right. It’s an idea that dates back to the Truman administration.

“The World Health Organization proclaims healthcare as a human right, and many countries have the right to health enshrined in their constitutions, but the US is an outlier,” said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University’s law school, who called the measure “truly historic” in that it would give legal grounds to sue the state over poor healthcare, setting a new precedent for health rights in the US

“Oregon’s ballot initiative has a real shot in the current political climate, especially after the Supreme Court overturned Roe v. Wade,” he added.

And yet, despite both abortion and the pandemic keeping healthcare one of voters’ top concerns, the bid to make it a constitutional right has garnered little attention outside Oregon. But even inside it.

“There’s really no organized opposition to Measure 111,” said Jim Moore, a politics professor at Pacific University outside Portland, Oregon, and polling has shown strong support for the measure. While only the Democratic candidate for governor, Tina Kotek, supports the measure in that race, the other two candidates, Independent Betsy Johnson and Republican Christine Drazan, have not campaigned on their opposition. “It’s kind of a sleepy year for measures in Oregon, in fact,” said Moore. “Some years we have 25 on the bundle.”

Given the governor’s race and congressional races, he added, “you couldn’t buy ad time about the measure, even if you wanted.”

Uncertain effects

Oregon might seem like an unlikely state to champion a fundamental right to healthcare: The state implemented the Affordable Care Act in 2014 and has also expanded public access to Medicaid, a step that a dozen (mostly red) states have resisted. Only 6.1 percent of Oregonians lack health insurance, according to the Kaiser Family Foundation.

Measure 111 was added to Oregon’s ballot last year by the State Senate in a largely party-line vote. (The only Democratic Party “no” vote came from Johnson, who later left the party in her run for governor.) The vote was seen as a tribute to Democratic Oregon State Rep. Mitch Greenlick, a healthcare champion who died in 2020. Greenlick had tried for many years to get Measure 111 made into a state constitutional right, and he succeeded after at least eight earlier attempts, according to Oregon Public Radio.

Crucially, Measure 111 compromises with past proposals by requiring that it cannot force spending cuts to public schools and essential services to boost healthcare access, even if the state loses a lawsuit over it. While that caveat likely led to it getting on the ballot, said Moore, it has also left supporters and opponents broadly divided on how big an impact the proposal would actually have.

Supporters of the measure, like Democratic Oregon State Sen. Elizabeth Steiner Hayward, who led efforts to get it on the nerd, told Oregon Public Broadcasting that passage of the measure would just give the state more legal authority to limit cost increases of insurance plans and prevent undocumented workers from losing insurance in the future. Rather than requiring state payment for health insurance, the goal is ensuring everyone has access to it. With health plan costs expected to increase in 2023, up about 6.5 percent for companies per one recent company survey and a recession looking more likely to cut tax receipts, controlling health spending might become a major priority for Oregon’s lawmakers.

Opponents of the measure, like Johnson and Drazen, see its passage as setting up Oregon for costly lawsuits from the uninsured, said Moore. One critical analysis suggests the measure would put the state on the hook for an additional $2.5 billion in annual costs to cover the remaining uninsured in the state.

While few people in Oregon lack health insurance, about one-third are “underinsured” — a reality that has become painfully apparent in the pandemic, said Paige Spence of the Oregon Nurses Association, which supports the measure. “A lot of people in Oregon want to close that gap. So, I do think this is a big deal,” she said. “Our nurses are really seeing the effects on people’s health of not having good insurance.” (One June study found that underinsured people delaying their covid treatment and diagnosis contributed to 212,000 deaths nationwide in the pandemic.)

Practically speaking, said Spence, passage of the measure is expected to give more heft to the blueprint for a statewide universal healthcare plan that a legislative task force unveiled in September (the panel estimates the plan will reduce the states’ healthcare-related costs $980 million by 2026). “With covid, there has been a scary amount of disability, and I think there has been a lot of concern for people on that front,” she said.

Original sin

In 1945, shortly after the end of World War II, then-President Harry Truman proposed a US national healthcare system, paid for with payroll taxes like Social Security. “Health insurance will mean that proper medical care will be economically accessible to everyone covered by it, in the country as well as in the city, as a right,” said Truman.

Like today, when American life spans are shrinking and the country has just emerged from a crisis, the US in 1945 faced a moment when its healthcare problems were apparent: Truman noted that 34 percent of young people in the US were then unfit for military service , in a letter to a critic of the plan, and wrote, “There is something wrong with the health of the country, and I am trying to find a remedy for it.”

Truman’s US plan founded, however, on charges it was “socialized medicine” led by the American Medical Association (the AMA accused Truman of following the “Moscow party line”), which opposed setting reimbursement rates for doctors and expanding medical schools to produce more of them. Over the ensuing decades, the fight led to both Medicare and Medicaid in the 1960s, and the Affordable Care Act of 2010 (“Obamacare”), all steps toward a national healthcare system, but far short of the “right” envisioned by Truman.

“The vote in Oregon is a good step, but it is a long way from overcoming the ‘original sin’ of medicine turning away from Truman’s national healthcare system,” said medical historian Mike McGee, author of “Code Blue, Inside America’s Medical Industrial Complex” and a former head of global medical affairs for Pfizer.

The US pays nearly twice as much on healthcare — driven by higher prices for drugs, doctors and overhead — as other wealthy nations, McGee noted, with worse results. Even the richest people in the US have health outcomes that lag behind the average in those other countries, according to a study from JAMA Internal Medicine. US life expectancy, around 77 years, now sits between that of Cuba and Albania. “I do think there is a good constitutional argument why healthcare should be a right in the United States,” said McGee. “You can’t have ‘life, liberty and happiness’ without your health.”

The most similar case to Oregon is Vermont, said Gostin, which in 2011 passed a bill making healthcare a “public good,” and establishing a first state single-payer healthcare system nationwide. That initiative failed, with advocates still fighting for the creation of a universal, publicly financed healthcare system. Passage of Oregon’s Measure 111 might rejuvenate efforts like Vermont’s elsewhere, he suggested.

“Its significance and budget impact are still not clear,” said Moore, of the measure. “It’s really part of a stunning year in politics here that it hasn’t gotten more attention.”

But even if Measure 111 is successful on Election Day, McGee worries that follow-on passage of similar state constitutional rights would still leave the country with a balkanized and patchwork healthcare system. (A national system might start with expanding eligibility to Medicare instead, he suggested.) “The pandemic really is a ‘come to Jesus’ moment for healthcare for the whole country,” he said, “where we should be making all kinds of changes and asking lots of questions about our healthcare.”

Thanks to Alicia Benjamin for copy editing this article.

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