“Senator, I Can’t Give You a Yes or No Answer”

At the end of January, videos of Robert F. Kennedy Jr.’s confirmation hearings went viral. Kennedy – a controversial figure best known for his anti-vaccines rhetoric – was chosen by newly elected president of the United States (US) Donald Trump to lead the US Department of Health and Human Services. Some of the questions asked during these hearings felt surreal. Kennedy faced scrutiny over his past controversial statements, notably linking vaccines to autism and equating vaccination policies to the Holocaust, as well as connecting chemicals to being transgender.

Among this confusion, one exchange especially stood out to me. At some point during the hearing, Senator Bernie Sanders asked Kennedy: “Do you agree with me, that the United States should join every other major nation on Earth, and guarantee health care to people as a human right? Yes? No?” Kennedy answered as follows: “Senator, I can’t give you a yes or no answer to that question.” Sanders asked again:

“Is health care a human right?”. “In the way that free speech is a right (?)”

Kennedy answered, “I would say it’s different, because with free speech, doesn’t cost anybody anything, but in health care, if you smoke cigarettes for 20 years and you get cancer, you are now taking from the poor.”

This post takes Kennedy’s remarks as a starting point to examine US’s international obligations concerning the right to health and assess the validity of these claims.

“Yes or No”: The United States’ Right to Health in International Law

First, a clarification on terminology. Kennedy and Sanders both refer to the “right to health care”. However, in international law, the right to health care falls under the broader concept of right to health. (Yamin, 1156) That said, Sanders suggested that the US is the only “major nation on Earth” that does not protect the right to health. Is this true? Today, the right to health is protected by international and regional instruments. At the international level, this right was first acknowledged in the 1946 Constitution of the World Health Organization (WHO) and subsequently by art. 25 of the 1948 Universal Declaration of Human Rights (UDHR).

In the following years, the United Nations (UN) began transposing the UDHR into binding international treaties (Kälin and Künzli,13): the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Policial Rights (ICCPR). Art. 12(1) ICESCR guarantees “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” and art. 12(2) ICESCR requires states to take the necessary steps “to achieve the full realization of this right”. In 2000, the UN Committee on Economic, Social and Cultural Rights (CESCR), interpreting the ICESCR, adopted General Comment No. 14 on the right of the highest attainable standard of health, which is not legally binding, but is the “most definitive interpretation” of art. 12 ICESCR. (Gostin, 257) At the regional level, the right to health is notably protected by art. 11 of the American Declaration of the Rights and Duties of Man (which is not a binding treaty) and the art. 10(1) of the Protocol of San Salvador interpreting the Organization of the American States Convention on Human Rights. (Kinney, 1461)

Today, the US has some international legal obligations concerning the right to health. It notably ratified the International Convention on the Elimination of All Forms of Racial Discrimination, which under art. 5 §e(iv) bounds states to take appropriate measures to eliminate racial discrimination in the enjoyment of the right to public health, medical care, social security and social services. (Yamin, 1158) However, it is true that the US failed to ratify the most important binding instrument protecting the right to health, the ICESCR, despite signing it in 1977, and did not ratify the OAS Convention on human rights nor the Protocol of San Salvador. Today, while “almost every industrialized country has some version of universal healthcare” (Ryan), Kennedy’s reluctance to affirm that health care is a human right appears to aligns with a longstanding US position on this matter.

“Not in the Same Way as Free Speech Is”: The Nature of the Right to Health

But what about the second part of the statement? Kennedy’s statement implies that the right to health cannot be considered a human right “in the same way” as free speech, because the latter supposedly does not impose an economic obligation on the state (“doesn’t cost anybody anything”) and the difficulty of its realisation does not depend on the conduct of some individuals (“if you smoke cigarettes for 20 years and you get cancer, you are now taking from the poor”).

For a long time, there have been discussions about the supposed differences between civil and political rights (such as the freedom of expression, notably protected by art. 19 ICCPR) and economic, social and cultural rights (such as the right to health, protected by art. 12 ICESCR). The distinction between the rights protected by the two covenants is that, while art. 2 ICESCR calls from a progressive realization (“take steps”) of economic, social and cultural rights, taking into account the available resources of states, art. 2 ICCPR mandates an “immediate obligation”. (Van Boven, 136) Does this mean that the nature of these human rights is different or – to use Kennedy’s words, that right to health is not a human right “in the same way” as freedom to expression? No.

Today, it is clear that economic, social and cultural rights, such as the right to health, do not differ in nature from other fundamental rights. All human rights are “universal, indivisible and interdependent and interrelated”. (Vienna Declaration and Programme of Action) The narrative that economic, social and cultural rights require important financial investments, while civil and political rights only demand refraining from interfering with the individual’s human rights is simply incorrect. (Office of the United Nations High Commissioner for Human Rights, 9) Even though economic, social and cultural rights may tend to give more importance to the obligation to fulfil (Kälin and Künzli, 106), they also entail tripartite obligations. For the right to health, this means an obligation to refrain from violating the right to health, to protect the right to health from third parties’ interferences, and to fulfil e.g., to adopt appropriate measure to guarantee health care. (Yamin, 1157) At the same time, the realisation of civil and political rights does not come for free to states (Schmid, 57) and also requires financial investments. For example, in the case of freedom of expression, states have the obligation to take the legislative steps to ensure that different opinions are represented by medias (Kälin and Künzli, 105, 499), which means that public resources have to be invested to this end.

Then there is the question of the impact of the individual conduct of some on the cost of realising the right to health for all. Everyone has the right to health, including (of course) smokers. The right is supposed to be universal and based on equal treatment (General Comment No. 14, §18-19), and not some sort of “reward” for good or bad behaviour. If a state wants to restrict the access to health care to one individual (notably because they are smokers – see this interesting analysis by Borucki), the restrictive limitation clause of art. 4 ICESCR must be respected (determined by law, compatible with the nature of the rights and necessary in a democratic society) – as for many other human rights (see for example art. 19(3) ICCPR for freedom of expression).

At the same time, the right to health is not a right to be healthy: states cannot guarantee that an individual is and will always be healthy (Toebes, 663) as several factors fall outside their control. The right to health takes into account both the state’s available resources and the preconditions of individuals, as well as the fact that “risky lifestyles” can play an important part in the individual’s health. This means that states have an obligation to provide equal access to a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health. (General Comment No. 14, §9)

Conclusion

As I am finalizing this blogpost, the US Senate confirmed Kennedy’s nomination. While the US may have more limited international legal obligations concerning the right to health compared to other countries, Kennedy’s statement implies a clear distinction between civil and political rights and economic, social and cultural rights, overlooking the clear agreement that the rights protected by the two covenants do not differ in nature and that they both entail financial obligations for states. At the same time, his comment about individual conduct does not take into account that the right to health does not entail a right to be healthy and falsely implies human rights should be understood as a “reward”, rather than rights inherent to all human beings.