Friday, April 11, 2014

Are GOP Governors who Reject Medicaid Expansion Violating their Residents' Civil Rights?

by Nomad

If the first duty of government is to protect its citizens then isn't access to health care included in that idea? 
Are the 21 governors that rejected the Medicaid expansion violating their state residents' civil rights? 

It has been long recognized that the first duty of government is to protect the people. Everything else- including party politics and budget considerations come after that responsibility. (This was something that even Ronald Reagan recognized.)  

The Most Basic Duty of Government
The idea that government has its special duty is based on the so-called Social Compact that pre-dates (but is upheld by) the US Bill of Rights and the Constitution. 
It works like this: The government has a duty to protect and in turn, all citizens conditionally surrender their absolute freedom (but not surrender absolutely) as a form of consent. Furthermore as subjects, all citizens were obliged to contribute- in the form of taxes and in the form of general compliance- to maintain the general welfare of the nation.
More and more we see some- especially in the Tea Party- calling to question this compact. 

In the last few years,  we have seen numerous examples of how the Republicans have decided that these principles are subject to their whims. One of their defenses has revolved around States' rights. Indeed, in most respects, the Constitution left the protection of the rights of individuals under the control of the states. The issue of States' rights has historically led to a lot of grief. (The Civil war, for example, was a states' rights issue.) Despite that, the conservative members of the Supreme Court are really big on states' rights.

Under the Medicaid expansion, the federal government would cover the expense for most of the Medicaid expansion. States would be required to pay for 10 percent of it by 2020. Though a countrywide expansion would provide coverage for some 17 million Americans who otherwise do not qualify for Medicaid, some states, including Texas, Florida, Mississippi, Colorado, and Pennsylvania, say that paying for even 10 percent of the expansion is too much for their tight budgets.
So when it comes to protecting the health of state residents, saving money has become the number one priority.
 As Texas Governor Rick Perry said of the Republican position:
Our view is that individuals and families can govern their lives better than bureaucrats.
 But better than medical professionals?

Equal Protection
However, the Fourteenth Amendment, (drafted- I might add- by the Radical Republicans) established the right to protection as a part of the federal Constitution and laws, and thus required the states to protect the fundamental rights of all persons, black as well as white, rich and poor.  To quote:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
According to a one source, this clause protects a person's rights as a citizen of the United States from unreasonable State Action or interference. The privileges and immunities of U.S. citizenship cannot be unreasonably abridged by state laws. 

This leads to the question: what is exactly a State Action?
A quick check of the sources tell us that the term is defined as "any activity by the government of a state, any of its components or employees who uses the "color of law" (claim of legal right) to violate an individual's civil rights."  The color of the law is usually related to abuse by police (i.e. that law enforcement exceeds its authority going beyond the limits of his or her authority). However, this brings up the question whether a governor of any state has the authority to deny health care of any individual of his state.

In the past, under both Republican and Democratic presidents we have seen the governors attempting to deny the civil rights of their own minority groups.
Think Alabama governor George Wallace standing at the door of a university to prevent the implementation of federal desegregation laws.

So the ultimate question is whether access to health care is a civil right. A secondary- but equally important- question:   Is it a violation of civil rights that the resident of one state, although having citizenship of the nation, should be denied privileges that are provided in than another state.
If you say no, then imagine this scenario: A single unemployed woman in Texas feels a lump in her breast but because she cannot afford the cost of screening, she receives no early treatment for the disease. The disease is allowed to progress without any treatment and in a year's time, after unsuccessful and expensive cancer treatment, (with costs paid by the taxpayers) the patient dies. Her twin sister who happens to live in Kentucky also finds a lump but, because her governor decided in favor of Medicaid expansion, she gets early treatment and survives. Does that sound like a fair system to you?
Perry has said that Texas already has an effective health care system based on the expensive emergency treatment system. Preventative medicine seems to be too theoretical for Texas.

A Shocking and Inhumane Policy
Many are prepared to argue access to health care is the most fundamental civil right, since a lack of health care makes it impossible for a citizen to participate freely and fully in society. 
As Martin Luther King said at the 1966 convention of the Medical Committee for Human Rights, a group of health care professions that supported the civil rights movement,
"Of all forms of inequality, injustice in health care is the most shocking and the most inhumane."
While I would defer this question to constitutional scholars, there is a question worth asking: If a citizen in, say, Arkansas or Kentucky (whose governors have approved of Medicaid expansion) is allowed access to federal Medicaid funds which, in turn, may allow treatment to save his or her life, while a person in Texas is denied by its state government that very same access, how are these American citizens being equally protected under the Fourteenth Amendment?

In any case, I honestly don't understand how these governors can sleep at night. It's just too bad that the governors like doctors can't be charged with malpractice. 

Update with Further Support
From The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, a Report of the United States Commission on Civil Rights, September 1999
Equal access to quality health care is a civil right. Although Congress has enacted civil rights laws designed to address specific rights, such as equal opportunity in employment, education and housing, it has not given health care the same status. Regardless, unequal access to health care is a nationwide problem that primarily affects women and people of color. 
The report noted that another factor (besides gender, and race) was class. 
In particular, women and members of racial and ethnic minority groups, especially those with lower socioeconomic status, generally do not have adequate access to quality health care.
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. As President John F. Kennedy said in 1963:
Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.
The Supreme Courts struck down the penalty in the law for states to lose their Medicaid funding if they do not participate in the expansion. However, there's an obvious conflict here since these governors are allowed to retain federal Medicaid funding in a limited form
Isn't that just an indirect form of discrimination against the poor, against women and minorities?


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