The question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the intersection of two contentions debates: health reform and immigration reform. Proponents of extending coverage argue that the United States has a moral obligation to provide health care to all those within its borders. Conversely, those against doing so argue that immigrants illegally present in the country should not be entitled to public benefits. This Article seeks to chart a middle course between these extremes while answering two questions. First, does constitutional law mandate extending health coverage to illegal immigrants? Second, even if not legally mandated, are there compelling policy reasons for extending such coverage? This Article concludes that while health coverage for illegal immigrants is not required under prevailing constitutional norms, extending coverage as a matter of policy would serve the broader interests of the United States. Extending coverage would be beneficial as a matter of economics and public health, generating spillover benefits for all US citizens and those in the US healthcare and health insurance systems.
CONTENTS INTRODUCTION I. THE PLACE OF ILLEGAL IMMIGRANTS UNDER CANADIAN AND US CONSTITUTIONAL LAW II. NELL TOUSSAINT AND CANADA'S INTERIM FEDERAL HEALTH PROGRAM A. Events before the Federal Court of Appeal B. The Aftermath and Implications of Touissant III. ARE ILLEGAL IMMIGRANTS LEGALLY ENTITLED TO PUBLIC HEALTH BENEFITS UNDER PREVAILING CONSTITUTIONAL NORMS? A. Under Canadian Law B. Under US Law IV. POLICY CONSIDERATIONS THAT WEIGH IN FAVOR OF EXTENDING HEALTH COVERAGE TO ILLEGAL IMMIGRANTS A. The Provision of Health Coverage to Illegal Immigrants Could Help Alleviate Existing Costs in the US Healthcare System B. Ensuring Timely and Appropriate Medical Treatment Advances Important Public Health Principles C. Is There Any Countervailing Consideration That Would Prove Fatal to Implementation of a Health Care Program for Illegal Immigrants? D. The Form of Coverage for Illegal Immigrants CONCLUSION INTRODUCTION
For those who caricature Canada as an endlessly welcoming environ for immigrants and unceasingly generous in its provision of health and other public benefits, these expectations were dealt a dual blow by the Federal Court of Appeal's 2011 decision in Toussaint v. Attorney General. (1) In that decision, the court determined that an illegal immigrant was properly excluded from a federal health insurance program and held that benefits under that program were only available to a narrow cla7ss of resident aliens and a limited number of illegal aliens within the control and jurisdiction of the Canadian immigration authorities. The decision was applauded by those who believed it would deter medical tourism the legal or illegal entry of an alien for the purposes of obtaining medical treatment or services unavailable in the alien's home country. (2) In the words of one Canadian lawyer, "It]his case is extremely important because it limits the potential claims that other classes of people in Canada may make for medical coverage, such as visitors or those without any status and under the radar, of which the number is currently unknown but estimated in the hundreds of thousands." (3) But others contested that Toussaint would not affect incidences of medical tourism. One Toronto-area doctor wrote that "[w]hile the government may have legal grounds to justify denying illegal immigrants health coverage, it is naive to think this will protect [Canada] from the form of medical tourism described [by the court]." (4) Still others objected to the legal reasoning of the decision, arguing that the provision of health care to illegal immigrants would be "in accordance with international and humanitarian principles." (5)
Toussaint points to an increasingly significant issue: how should countries deal with the health concerns of their illegal populations? The reasoning of the Toussaint court, along with the reactions thereto, reflect the controversy this issue has engendered in both Canada and the United States. At one extreme, it is argued that illegal immigrants should not have access to public benefits, as this would impede lawful citizens' ability to enjoy those benefits. (6) At the other extreme, it is argued that there is a moral or ethical obligation to provide health services to anybody within a country, regardless of his legal status or right to be present. (7) Although US courts have not had occasion to pass on this issue as decisively as the Canadian Federal Court of Appeal, Touissant's partisan discourse was paralleled in the United States during the debate over the Patient Protection and Affordable Care Act (ACA). (8) Illegal immigrants are not covered under the ACA's individual mandate provision, nor are they entitled to any government subsidies or other benefits associated with the reform. (9) Nonetheless, the mere hint that illegal immigrants might be able to take advantage of some of the reforms generated rhetorical shock waves. (10)
This Article begins by exploring whether some form of health care must be extended to illegal immigrants under either the Canadian Charter of Rights and Freedoms or the US Constitution. Next, this Article considers whether some form should be extended regardless of whether the law requires that extension. The first question is a legal one: whether illegal immigrants have a claim to public benefits in a country where they otherwise have no status. The second question is policy-oriented: whether, regardless of if health care legally must be extended, there are compelling economic or pragmatic reasons for extending certain health services or insurance to illegal immigrants. In answering these questions, this Article seeks to steer a middle course between the rhetorical extremes of the healthcare and immigration debates. By narrowly focusing on aspects of the problem that appeal to their constituencies, the extremes have become myopic and minimized many of the nuances that could contribute to a broad-based and equitable solution. By focusing on the purely legal and policy questions raised by the issue, this Article seeks to chart a moderate course that could culminate in a solution that, even if not perfectly acceptable to the extremes, would best serve the needs of the affected populations.
Part I of this Article reviews the Canadian and US constitutional provisions relevant to the legal consideration of the issue. While both countries do offer protections to everyone within their borders regardless of legal status, these protections are neither limitless nor coextensive with those offered to citizens. Part II charts the course of the Toussaint decision through the Federal Court of Canada and the Federal Court of Appeal. This section highlights the general legal reasoning that should be applied to the question of whether some form of health care must be extended to illegal immigrants as a matter of law. Parts III and IV move beyond the specifics of Toussaint and attempt to answer the two questions posed in this Introduction: whether healthcare must be extended to illegal immigrants and whether healthcare should be extended. This Article concludes that although current US and Canadian law, and any foreseeable future evolutions, do not mandate that a state provide its benefits to noncitizens, there are nevertheless compelling policy reasons for extending health services and coverage. These range from economic considerations to public health concerns and strongly indicate that the health and well-being of the population as a whole may be influenced by the level and timing of care offered to illegal immigrants. This Article concludes by outlining some ideas about how best to extend healthcare coverage to illegal immigrants.
THE PLACE OF ILLEGAL IMMIGRANTS UNDER CANADIAN AND US CONSTITUTIONAL LAW
Although illegal immigrants possess no status or right to residence in either the United States or Canada, they nevertheless have limited legal and constitutional protections in both countries.
The relevant rights under Canadian law are embodied in the Canadian Charter of Rights and Freedoms. (11) Enacted in 1982, the Charter contains such guarantees as due process and equal protection. (12) These rights apply to everyone physically present in Canada, not just citizens or those lawfully residing in the country. (13) Under Section 7 of the Charter, "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." (14) Section 15 states that "[e]very individual is equal before and under the law and has the right to equal protection and equal benefit of the law," regardless of "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." (15) Nevertheless, Section 1 clarifies that these rights and freedoms are subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (16)
The constitutional principles at issue in the United States are analogous to those in the Canadian Charter. As the Supreme Court has noted, "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." (17) While aliens outside the United States are not entitled to constitutional protections, aliens physically present in the country--lawfully or otherwise--enjoy limited protections. (18) What process is due depends on specific facts and circumstances and varies from case to case, (19) and illegal immigrants do not have rights coextensive with those of citizens: "[A] host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class...