Do we have a "right" to health care?

We the people, in order to form a more perfect union...

An analysis on the question of a constitutional right to health care.

Background
As the debate over health care reform rages, a commonly heard argument on both sides of the debate is "Americans have a right to health care!", or on the other side "it is unconstitutional for the Federal government to nationalize health care!"

This article seeks to clarify specifically if we do in fact have a "right", and if it is constitutional for the Federal government to establish a nationalized health care system.

Do we have a "right"?
In many Constitutions of foreign countries there is an explicit right to health care provided by the government. For example, the new Iraqi Constitution that we helped them to write explicitly guarantees health care, and is quite progressive in the rights guaranteed to its citizens.

While there is nothing in the United States Constitution that explicitly grants Americans to a right to health care, there are many State and Federal laws that explicitly grant the right to health care in certain circumstances.

It should be noted that there is a difference between having a right to health care and having a right to free health care. This is an important distinction! Federal law mandates that Emergency Rooms must care for all patients that show up with medical emergencies. This law does not mandate they do this free of charge.

In summary, yes, there is a legal right to health care in emergency situations, but no, there are no guarantees of free health care, Constitutional or otherwise. Additionally, anti-discrimination laws also provide a right to equal access to health care for all.

Is it Constitutional?
There is much debate over the Constitutionality of the Federal government's involvement in health care. Many critics claim this is a blatant power grab that is not authorized by the Constitution. This criticism is largely based on the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 This states that any power not explicitly granted to the Federal government is "reserved" to the States, or to the people. But what does "reserved" mean? In short, it means that the States, or the people can choose to grant some power to the Federal government or explicitly prohibit some power from the government. Unfortunately, there is no mechanism defined in this Amendment for how the people might exercise this reservation.

At this point, one can only assume that this "reservation" is exercised using the democratic processes spelled out in Federal and State Constitutions -- although this argument is very much open to debate. In other words, people can use their reservation by electing Congressional representatives who campaign on promises of implementing programs those voters support at a Federal level.

On the other hand, those that claim it is within the Federal government's Constitutional powers to regulate health care say that the 10th Amendment really is not applicable, but rather, Article I, Section 8 is what grants broad powers to regulate health care by two means: the power to provide for the general welfare, and the power to regulate Interstate commerce.

The Congress shall have Power To lay and collect Taxes, ... and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;
...
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The US Supreme Court has long established a highly inclusive doctrine for determining of commerce crosses state lines. Things like riverboats that cross a river dividing states can be regulated. Radio stations that broadcast only within a State's borders can be regulated. Food and medicines are also regulated by the Federal government.

In general, the Interstate Commerce Clause has been interpreted to mean any activity that is widely used by some broad population in many and/or all of the States. Under this interpretation, it is clear that Constitutionally speaking, the Federal government absolutely has the power to implement a national health care system.

Finally, under the "provide for the common Welfare" clause, it obvious that a healthy citizenry must be included as a component of the good welfare of the people.