Comparative Constitutional Rights to Publicly Funded Health Care in Canada and the United States

Canadian Review of American Studies Volume 23, Number 3, Spring 1993, pp. 109-124 Comparative Constitutional Rights to Publicly Funded Health Care in Canada and the United States Sheilah L. Martin Introduction 109 It is sometimes said that the newly entrenched Canadian Charter of Rights and Freedoms 1 has taken over legal discourse in Canada. In this paper, I will discuss the constitutional dimensions of publicly funded health care, under the American and Canadian constitutions. While my perspective will be a comparative one, my main focus will be on whether the Charter gives Canadians a constitutionally protected right to publicly funded health care. Any Charter-based claim to government-sponsored medical services will be a matter of first instance. Canadian courts can be expected to turn to American case law in an attempt to benefit from its longer experience and to learn from its mistakes. It is my argument that American authorities which deny the existence of an obligation on American governments to use public funds for health care should not be imported into Canada. In my view,the important differences in our health care systems, the text of our constitutions , our distinct histories and divergent political philosophies combine to make the free trade of jurisprudence on this important matter highly inappropriate . Health Care Systems in Canada and the United States Before I proceed with this argument it is important to understand that I am not speaking about a right to health but rather a right to state-supported 110 Canadian Reviewof American Studies health care. To talk of a right to health overstates the case in so far as a right cannot deliver the well-being that nature or circumstance has denied. I would also like to provide a brief ovetview of our respective health care systems because there are numerous, marked differences in philosophy, effect , and coverage, even though both depend on cooperative federalism and the use of federal spending power. In both countries, health care is primarily a matter for the state or province and the influence of the federal government comes from the banker's ability to make the grant of monies conditional . In both jurisdictions, the receipt of full federal contribution is premised on local compliance with nationally prescribed principles. But these jointly sponsored programs have different roles within the overall health care structure. In the United States, the starting point is that individuals are personally responsible for the entire cost of all of their health care needs (see generally , Jonas, 1986; Dougherty, 1986). Faced with the prospect of daunting and untimely medical bills, Americans who can afford to do so participate in some form of private health care insurance. Publicly funded health care does existbut it is the exception, both philosophically and statistically. There is Medicare, a program which resembles the Canadian health care system in name only, for senior citizens. Even those who qualify attempt to supplement Medicare with private insurance to offset the costs it does not cover. There are also "categorical assistance programs" which target the needs of certain defined groups, like children, the aged, the indigent, and the disabled , state programs directed at certain medical problems and Medicaid, a blanket label for around fifty different state programs which have qualified for federal funding.2 Critics argue that the combination of private and public health care systemis inhumane, costly,inefficient, and administratively cumbersome. They claim that it operates in a classicist and racist manner and the result is different health care systemsfor the rich and the poor (see Curran 1989). In Canada, publicly funded health care is the legislated norm. Canadians benefit from a comprehensive and universal health insurance system with prepaid medical and hospital services. The Canadian system, also referred to as Medicare, covers the full cost of hospital care, including most chronic care, medical treatment, and doctor visits (for a general discussion, see SheilahL. MartinI 111 Begin, 1988; Canada, 1964-65). The vast majority of the cost is funded through general taxes, but the provinces of Alberta and British Columbia require individuals to pay health care premiums.3 Doctors are paid on a feefor -service basis, they bill the province directly, and have government guaranteed receivables. Since 1984, they...