Dynamics of healthcare reform: bitter pills old and new.

• Author: Roberts, Christopher N.J.

ABSTRACT

The United States is at a crossroads--albeit one it has visited several times before. Although the Supreme Court has ruled upon the constitutionality of the Patient Protection and Affordable Care Act, the polarizing controversy surrounding national healthcare that began several generations ago is likely to continue into the foreseeable future. In this latest round of national debates, the issue of healthcare has been framed exclusively as a domestic issue. But history shows that the question of national healthcare in the United States has also been an extremely important issue for international law and international politics. To shed light on the overlooked nexus between the Act, U.S. constitutional law, and international human rights law, this Article examines the debates surrounding healthcare and human rights that occupied the nation's attention over six decades ago.

In the late 1940s, the controversy over President Harry Truman's national healthcare plan became known as the nation's "Great Debate." But because Truman's plan never actually became law, this episode of U.S. history has largely escaped the attention of legal scholars. This mid-century debate over healthcare reform has had a profound impact on contemporary domestic and international legal institutions. This Article reveals how, beginning in 1948, the debate over healthcare set in motion a series of political precedents, social practices, and legal interpretations that have influenced every subsequent battle over U.S. healthcare. But in particular, this early debate over healthcare was an important factor in the historic decision in 1952 to divide the Covenant on Human Rights into the two treaties we have today--the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

TABLE OF CONTENTS I. INTRODUCTION II. THE LIMITS OF THE U.S. CONSTITUTION III. THE OPPOSITION FORMS A. International Support/Domestic Opposition B. The Campaign Blitz C. Keeping Socioeconomic Rights Out D. Domestic Opponents/International Treaties E. A Legal Sleight of Hand IV. RIGHTS EMERGE FROM STRUGGLE V. CONCLUSION I. INTRODUCTION

The Supreme Court has decided upon the constitutionality of the Patient Protection and Affordable Care Act. The issue of national healthcare is one of the most controversial and often replayed civic debates in U.S. history. This Article explores President Harry Truman's effort to enact his national healthcare plan during the late 1940s and early 1950s. The bitter controversy that emerged U.S. exceptionalism that are taken for granted today: (1) the reluctance to view access to healthcare as a universal right and (2) the rejection of incorporating international human rights into U.S. domestic law. (1) But because Truman's plan never actually became law, this episode of U.S. history has largely escaped the attention of legal scholars.

Overlooking this legal history is a mistake for two reasons. First, while Truman's plan never ended up as law, this does not mean that the underlying social and political struggles are in any way inconsequential for contemporary law and policy. For example, this particular historical controversy ushered in a new era of politics that transformed the way such battles were fought. In the late 1940s and early 1950s, private-interest groups on this issue raised unprecedented sums of money and developed a practice that is now de rigueur in political battles: the negative media blitz. Opponents of healthcare reform saturated the airwaves, packaging fear and vitriol into media-friendly bundles of distorted information. Indeed, these debates over healthcare set in motion a series of political precedents, social practices, and legal interpretations that have influenced every subsequent battle over U.S. healthcare.

Second, the debate over national healthcare actually was a factor in the development of law--international human rights law. But interestingly, this piece of the healthcare story--which relates to how the foundation of the modern international human rights regime was literally split in two--has never before been explored. In recent years, a small but growing number of social and legal historians have begun to shed new light on the complex interactions between international geopolitical concerns and domestic interests during critical moments of rights formation. (2) While these scholars have focused on issues such as race and civil rights, the connections between domestic healthcare policy and international human rights have never before been examined.

Through extensive archival research and the use of a new interdisciplinary, socio-legal research framework, this Article exposes a previously unknown side of the healthcare debates. This Article shows how during the late 1940s and early 1950s, the nation became polarized over the issue of national healthcare as powerful interest groups, such as the American Medical Association (AMA), joined forces with influential political factions in the U.S. government. All the while, a parallel, global debate over human rights was taking place at the United Nations. The two controversies--the first over national healthcare in the United States and the second over whether socioeconomic rights were actually human "rights"--soon became inextricably linked with one another. (3) The domestic controversy over the United States' healthcare quickly became mired in Cold War geopolitics and international uncertainties surrounding the decline of empire.

Because scholars typically compartmentalize their studies of domestic constitutional law on the one hand, and international human rights law on the other, legal historians have yet to explore how this earlier struggle over healthcare occupied both spheres of law simultaneously. This Article reconnects these important pieces of the history of healthcare reform. Indeed, negative domestic media campaigns effectively linked the idea of national healthcare with "socialized medicine" during these early days of the Cold War. (4) At the United Nations, the State Department caved under the mounting domestic opposition and took the necessary steps to define socioeconomic rights as limited "goals" or "principles" rather than actual universal human "rights." Then, in 1952, the original plan for a single international covenant that contained both civil and political rights and socioeconomic rights was scrapped. Despite the protests from many other furious UN member states, the Covenant on Human Rights (the Covenant) was split up into the two International Covenants we have today. (5)

The central argument presented in this Article is that the opponents of U.S. healthcare reform in the late 1940s and early 1950s created and reinforced enduring ideational and institutional structures that now act as "safe havens" for continued legal opposition against incorporating universal healthcare provisions and international human rights law into U.S. domestic law. And now over sixty years later, both the United States and the global community remain constrained and beholden to a series of social, political, and legal conflicts of an era that has long passed.

Part II of this Article outlines the early conflict between U.S. domestic law and the human rights that were under consideration at the United Nations in the mid-to-late 1940s. Part III chronicles the previously unknown impact that the domestic opponents of healthcare reform had upon the State Department's policies and actions at the United Nations. Part IV shows how human rights historically have developed through organized struggle. Finally, Part V provides several theoretical and historical lessons gleaned from this earlier struggle over healthcare and human rights.

2. THE LIMITS OF THE U.S. CONSTITUTION

   At the opening meeting of the Commission on Human Rights on April 29, 1946, Henri Laugier, the Assistant Secretary-General for the UN Department of Social Affairs, instructed the Commission to include socioeconomic rights in the bill of human rights they would soon draft. (6) Because modern industrialization inflicts "intolerable servitude" on otherwise free individuals, Laugier informed the Commission that "the declaration of the rights of man must be extended to the economic and social fields" to include rights such as labor rights and the rights to education, social security, and adequate medical care. (7) A year later, during the First Session of the Commission on Human Rights Drafting Committee, Eleanor Roosevelt reminded the representatives that because of their importance (and because they had been instructed to include them), socioeconomic rights "could not be omitted." (8) But beneath the United States' apparent support for these rights that enjoyed widespread backing amongst many other members of the United Nations, there existed deep anxieties about actually including them in a binding covenant. So Roosevelt, who knew that the Senate was likely to reject a covenant with strongly worded socioeconomic rights, hedged. She added that socioeconomic rights should remain minimally articulated and "could not be expanded too much in a Declaration." (9) This was one of the early signs of what John Humphrey--the Canadian legal scholar responsible for creating the first draft of the Universal Declaration of Human Rights--later recalled was the "considerable opposition in the Drafting Committee to their inclusion." (10)

   The competing desires to (1) keep socioeconomic rights out of the Covenant, while (2) appearing as a cooperative and progressive leader in international politics had the United States in a difficult position. As Eleanor Roosevelt wrote in a letter to Secretary of State George Marshall, the great political concern was having to state openly at the United Nations that the United States, "in view of the fact that Congress would have to ratify such treaties, can not agree to wording which goes beyond our own...