HEALTH CARE/Joan Retsinas

Justice for Some of Us

In the hubbub over new Supreme Court nominees, the interest groups have mounted their barricades. Defenders of abortion, defenders of gay marriage, defenders of civil liberties -- they fill the media, voicing their fears.

Too bad the poor are not so organized, with "talking heads" to plead their case. Although legal wizards are tracking the erosion of the rights of the poor, those reports generate no outcry.

Indeed, "rights" may be a misnomer. The poor have benefits that a munificent government lays on them. As for rights, they have the tried-and-true "life, liberty and the pursuit of happiness." Nothing more concrete.

At least that is the gist of recent court rulings vis-à-vis medical benefits.

The controversy revolves around Medicaid. Is it a right or a benefit? Once Congress grants people health insurance under Medicaid, can states arbitrarily drop recipients from the rolls to save money, slash payments to providers or pare back benefits -- dropping such basics as toddler-screenings?

The tentative answer, in this new age of government-lite, is yes. For 40 years, Medicaid has insured the nation's categorically eligible citizens (generally, impoverished women with children and elderly people needing institutional care). Funded in part by states, in part by the federal government, Medicaid has not offered stellar coverage.

Poorer states have set more rigid age and income cutoffs than wealthier states. Benefits also have varied with states, as have payments to providers. In states that pay providers too little, many providers have refused to take patients on Medicaid. Dentistry is a prime example. On paper a state may include dentistry among its benefits; but in some states so few dentists accept Medicaid that few would-be patients can get help.

Medicaid, whatever its flaws, has been the nation's mega-safety net. We have 45 million people without insurance. Without Medicaid, we'd have another 35 million. And for 40 years the people covered under the Medicaid tent have assumed that this entitlement gave them the right to take their grievances to court.

A 19th century civil rights law -- Section 1983 -- gave people the right to sue their government, if it flouted the law. In 1965 Congress passed Medicaid legislation. People covered under Medicaid took Section 1983 as the green-light entrance to the courts. Home care providers, nursing home owners and hospitals that believed that the state set fees too low have gone to court.

So have beneficiaries angry that a state slashed benefits -- or dropped them from the rolls. In 2003, when Kentucky dropped 3,000 people from the Medicaid rolls, the national Senior Citizens Law Center and the Kentucky Office of Legal Service Programs filed suit -- and won. Kentucky had to restore benefits to those people. Similarly, when mothers in Michigan protested Medicaid's decision to drop early childhood screenings, the mothers won -- ultimately.

Recently, though, the courts have been giving Section 1983 cases new scrutiny. Judicial reasoning has been clear, if cruel. Congress created Medicaid, but unless Congress made the right to sue explicit, then courts have been willing to dismiss those suits. The new buzz word is "rights-creating" language. The Medicaid legislation has none of that magical "rights-creating" language. The 1965 legislative authors did not think so litigiously. Yet without some of that language embedded in legislation, the enrollees can complain to their politicians, to their state Medicaid offices, to the media.

But they can't take their grievances to court. In effect, recent court rulings have given states a green light to drop people from the rolls, to slash benefits, to cut payments to providers -- to gut Medicaid. States have sovereign authority to rewrite the terms of Medicaid, which is emerging as more of a contract and less of a right. Poor people have few allies in government: Politicians respond best to those who contribute to campaigns, who lobby for action, who mobilize voters.

The poor do none of those. The courts have traditionally been the one institution that has at least listened to them. Not anymore.

Joan Retsinas is a sociologist who writes about health care in Providence, R.I. Email

From The Progressive Populist, Oct. 15, 2005

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