The United States stands alone among wealthy nations in failing to assure its population reasonable healthcare. The problem’s magnitude is staggering: 28 percent of US adults–and 41 percent of low- and moderate-income working-age adults–spent some portion of 2007 uninsured, and 72 million adults faced serious medical debt. One in eight children was uninsured in 2006. The underlying cause: lack of a national policy guaranteeing universal, affordable healthcare.

Even the insured are hurting from the healthcare mess in America: unraveling employer coverage, a Medicare program straining under exponentially rising costs, a grievously overburdened Medicaid program. We suffer from an individual insurance market that, paradoxically, rejects the very people who most need care through pervasive exclusions and by pricing coverage out of reach. Judges are not blind to the system’s frailties, yet they almost invariably support hospitals, insurers and the government against individuals, as if somehow the diminution of legal rights will let the rest of us hang onto our own benefits. Occasionally, conduct is so outrageous that an individual wins, as in a recent Supreme Court decision in which an insurance company first forced a seriously disabled worker to apply for Social Security disability as a condition of qualifying for her pension and then, once she qualified, denied the pension coverage (Metropolitan Life Insurance v. Glenn, 2008). Or consider Hailey v. California Physicians Services (2007), a lower court case from California, in which a health insurer kept collecting premiums until the member became ill and then cut him off.

These decisions are few and far between; judges give hospitals and insurers vast leeway to exclude, deny or discriminate. With government programs such as Medicaid, they are attempting to close the door to patients entirely. Consider these developments:

§ The Emergency Medical Treatment and Labor Act (EMTALA) requires Medicare-participating hospitals with emergency departments to stabilize patients with medical emergencies using “the staff and facilities available at the hospital.” Despite this plain language, the landmark 2002 case Harry v. Marchant (quickly codified as a systemwide rule by the Bush administration in 2003) held that EMTALA obligations end at inpatient admission: hospitals can now admit–and then dump–unstable patients, unless caught in a “subterfuge,” a virtually impossible act to prove.

§ The Americans with Disabilities Act (ADA) protects qualified persons with disabilities from discrimination. But an insurer was permitted to carve out an HIV/AIDS exclusion, despite its blatant admission in court that it lacked any actuarial data or reasonable evidence, on the grounds that the ADA does not reach the content of insurance coverage and the insurer could thus bar coverage for HIV treatment. Following Doe v. Mutual of Omaha Insurance Company (1999), insurers today are essentially free to market and sell policies that single out health problems–mental illness, cancer, MS, developmental disabilities in children, you name it–for coverage exclusions.

§ The law requires states to assure that Medicaid beneficiaries have the same access to care as other people. Despite this requirement and the absence of any other legal recourse in states that fail to abide by the law, most courts, encouraged by the Supreme Court’s drive to limit judicial access, now bar such claims on the ground that beneficiaries have no enforceable “rights” under the law.

The nation needs a president and senators who view courts as a place for equity and justice. Beyond this, the nation needs a president and a Congress who consider healthcare a basic human right. In matters of social and economic justice, judges reflect the world around them; if society expects a universal, affordable and fair healthcare system, and chooses its leaders accordingly, the courts will do their share.

Other Contributions to the Forum

“The Supreme Court and the Election: What’s at Stake,” by Herman Schwartz

“Safety Last,” by David C. Vladeck

“Senior Rights & Wrongs,” by Harper Jean Tobin

“Debtor Nation,” by Robert M. Lawless

“Hard Knocks in the Workplace,” by Eric Schnapper