The Greatest Wealth: Health as a Human Right in China, Singapore, South Korea, and the United States

Taylor Brack *

I. INTRODUCTION ...... 2 II. THE CASE FOR HEALTHCARE AS A HUMAN RIGHT ...... 6 III. THE U.S. APPROACH...... 13 IV. THE ASIAN APPROACH ...... 21 A. China: Promoting Accountability and Realignment of Doctor Incentives ...... 23 B. Singapore: Fostering Public-Private Partnership in Healthcare Financing ...... 29 C. South Korea: Using “Pharmaeconomic” Data and Health Technology Assessment to Rationalize Drug Spending ...... 32 V. CONCLUSION ...... 36

“The fight for health as a human right, a fight with real promise, has so far been plagued by failures. Failure because we are chronically short of resources. Failure because we are too often at the mercy of those with the power and money to decide the fates of hundreds of millions. Failure because ill health, as we have learned again and again, is more often than not a symptom of poverty and violence and inequality — and we do little to fight those when we provide just vaccines, or only treatment for one disease or another…The goal of preventing human suffering must be linked to the task of bringing others, many others, into a movement for basic rights…That goal is nothing less than the refashioning of our world into one in which no one starves, drinks impure water, lives in fear of the powerful and violent, or dies ill and unattended. Of course, such a world is a utopia, and most of us know that we live in a dystopia. But all of us carry somewhere within us the belief that moving away from

* Juris Doctor Candidate, William S. Richardson School of Law, University of Hawai’i. I am grateful to APLPJ staff editors Elise Swain, Nathaniel Mueller, and Miranda Steed as well as editors-in-chief Jenifer Jenkins and Melody Kaohu for devoting their time and talents to this paper. I also give my thanks to Professor Szymczak for guiding me through the process of researching foreign law. 2 Asian-Pacific Law & Policy Journal [Vol. 20:2

dystopia moves us towards something better and more humane. I still believe this.” – Paul Farmer

I. INTRODUCTION Health, like education, is part of the foundation of a thriving society.1 A state that ensures its citizens have access to quality healthcare makes an investment in human capital and performs its part in the social contract between states and citizens.2 But for many reasons,--- cultural, economic, political, logistical--- no two healthcare systems operate in the same way or achieve the same results.3 How should one measure the success of a healthcare system? Is it better for a state to comply with international law so that everyone can rely on having access to basic medical care? Or is it better for a state to disregard the mandates and principles of international law in favor of creating a system that produces what could be regarded as more optimal outcomes? This is a difficult question in a world with infinite needs and finite resources. As the political philosopher John Rawls notes, in societies where economic and social inequality exists, a just and fair distribution of any public good must be to the benefit of the least advantaged.4 Any system where the poorest and politically disenfranchised are worse off than if they had been living in a purely egalitarian system is a failed system.5 Universal Health Care (“UHC”) is a way for states to create a path forward - transforming a failed system into a successful one. UHC is defined as a system where “all people have access to the health services they need (prevention, promotion, treatment, rehabilitation, and palliative care) without the risk of financial hardship when paying for them.”6 A country that implements UHC strives to achieve the following objectives:

1 See Tsung-Mei Cheng, Universal Health Coverage: An Overview and Lessons from Asia, 4 HARV. PUB. HEALTH REV. 1, 2 (2015). 2 See id. at 2; see also Dustin T. Holloway, Self-Interest as Motivation for International Cooperation Toward Universal Healthcare, 4 HARV. PUB. HEALTH REV. 1, 2 (2015). 3 See generally Cheng, supra note 1.

4 See Leif Wenar, John Rawls, STAN. ENCYCLOPEDIA OF PHIL. (Spring ed., 2017), https://plato.stanford.edu/entries/rawls/ (last visited Apr. 17, 2018); see also ANDREW KOPPELMAN, THE TOUGH LUCK CONSTITUTION AND THE ASSAULT ON HEALTHCARE REFORM 8-9 (2013) (for a discussion of Rawl’s difference principal). 5 See Wenar, supra note 4. 6 See, e.g., G.A. Res.72/139, ¶ 6 (Jan. 15, 2018); What is Universal Coverage, WORLD HEALTH ORGANIZATION, http://www.who.int/health_financing/universal_coverage_definition/en/ (last visited Apr. 17, 2018); Questions and Answers on Universal Health Coverage, WORLD HEALTH 2019] Brack 3

1. “Equity in access to health services - everyone who needs services should get them, not only those who can pay for them; 2. The quality of health services should be good enough to improve the health of those receiving services; and 3. People should be protected against financial-risk, ensuring that the cost of using services does not put people at risk of financial harm.”7

The two components of UHC, (1) maximizing access to necessary health services and (2) financial risk protection, make it a vehicle for combating social inequality overall.8 In line with the Rawlsian ideal of economic justice, UHC upholds a standard that defines the success of any healthcare system as the relative well-being of society’s most vulnerable members.9 The principles of UHC might make it seem like a lofty and intangible pursuit, but the wide variety of countries that do successfully implement UHC demonstrate the flexibility and possibilities of UHC. The right to healthcare is in international law, but not every country recognizes it. This paper will argue that no matter the relative wealth, cultural values, or population demographics, any country can and ultimately should strive to implement UHC. There is no legal right to healthcare in the United States (“U.S.”). In fact, there are many barriers to accessing healthcare. One of the biggest barriers is economic: many have written on the exorbitant, inflated costs of healthcare and the vast numbers of uninsured and underinsured. The U.S. healthcare system demonstrates that when a country promotes a for-profit healthcare system that relies on private, commercial insurers to distribute medical coverage amongst a population, everyone, insured and uninsured alike, suffer.10 The sickest and poorest in that population will be deprived

ORGANIZATION, http://www.who.int/contracting/documents/QandAUHC.pdf (last visited Apr. 17, 2018). 7 See What is Universal Coverage, supra note 6. 8 See Questions and Answers, supra note 6 (“Access to health services ensures healthier people; while financial risk protection prevents people from being pushed into poverty. Therefore, universal health coverage is a critical component of sustainable development and poverty reduction, and a key element to reducing social inequities.”). 9 See Cheng, supra note 1, at 3 (“Health policy analysts and policy makers must be realistic when working within socio-economic constraints. Practically, in terms of global health programs, this means that the approach should be Rawlsian. It means that the concern should be mainly over how well the poorest within a country fare and less over whether the distribution of health care in countries conforms to egalitarian ideals.”); see also JOHN RAWLS, A THEORY OF JUSTICE 102 (1971) (“In justice as fairness, men agree to share one another's fate,”). 10 See Koppelman, supra note 4, at 6 (“Insurers who become skillful at protecting themselves from large payouts- by excluding coverage for preexisting conditions, by 4 Asian-Pacific Law & Policy Journal [Vol. 20:2 of access to even the most basic aspects of primary care and even people in the middle class will struggle under the weight of such an inefficient system.11 In addition to being deprived on economic grounds, de facto and de jure discrimination based on race, sexuality, or gender (for which there is little legal recourse, especially in the era of Trump) bars people from accessing quality medical care and generates poor health outcomes that can span generations.12 On economic and humanitarian grounds, the U.S. healthcare system is a failure.13 Reform, however, is far from a simple conclusion. The troubled past and the uncertain future of comprehensive healthcare reform movements in the U.S. highlights the many challenges in righting the wrongs of a broken healthcare system.14 The examples set by countries around the world show that UHC, in all its various forms, achieves a more just and equitable distribution of healthcare than a purely private commercial market.15 But no matter the urgency of the need for reform or the insistence of the international community to take a “people-centered approach on health issues,”16 the idea of UHC for all Americans seems far-fetched considering the many social, denying claims or delaying payment, and by raising rates or canceling policies for individuals who become sick- will financially outperform their competitors. They are behaving rationally, in ways that a well-functioning market will reward...In the United States, where health care is provided by private insurers, these incentives have created a system in which more and more people are squeezed out.”). 11 See Koppelman, supra note 4, at 7 (“The uninsured suffered avoidable illness, received less preventative care, were diagnosed when their illnesses were more advanced, and once diagnosed received less therapeutic care… Those who don’t die are worse in health, and sometimes are financially ruined by medical expenses.”); see also Vann R. Newkirk II, The American Health-Care System Increases Income Inequality, ATLANTIC (Jan. 19, 2018), https://www.theatlantic.com/politics/archive/2018/01/health-care-income- inequality-premiums-deductibles-costs/550997/. 12 Kimberley Dawson, Doctors Who Oppose Abortion and LGBT Rights Get New Government Protections, BROADLY (Jan. 18, 2018), https://broadly.vice.com/en_us/article/3k5eab/doctors-who-oppose-abortion-and-lgbt- rights-get-new-government-protections; Nina Martin, Black Mothers Keep Dying After Giving Birth. Shalon Irving's Story Explains Why, NATIONAL PUBLIC RADIO (Dec. 7, 2017). 13 Nina Martin & Renee Montagne, U.S. Has The Worst Rate Of Maternal Deaths In The Developed World, NATIONAL PUBLIC RADIO (Mar. 12, 2017), https://www.npr.org/2017/05/12/528098789/u-s-has-the-worst-rate-of-maternal-deaths- in-the-developed-world.

14 See generally Colin Gordon, DEAD ON ARRIVAL: THE POLITICS OF HEALTH CARE IN TWENTIETH-CENTURY AMERICA (2004).

15 Amartya Sen, Universal Health Care: The Affordable Dream, 4 HARV. PUB. HEALTH REV. 4 (May 2015) (“How much healthcare can be provided to all may well depend on the country’s economic means, but whatever is affordable within a country’s means can still be more effectively and more equitably provided through universal coverage.”). 16 G.A. Res.72/139, supra note 6, ¶ 6. 2019] Brack 5 political, and legal obstacles in the United States. The implementation, however, of UHC in some Asian countries demonstrates that change is not out of reach. At first glance, it might seem odd to emphasize the healthcare systems in China, South Korea, and Singapore. Many have written about the ambitious and progressive social welfare systems in European democracies: the National Healthcare Service in the United Kingdom,17 the national health insurance in France,18 and the healthcare system in Sweden.19 The Asian approach is instructive because it demonstrates that no matter the unique needs of a population--- such as aging, rapid economic growth, urbanization, and related epidemiological changes--- a universal health care system can be created to meet those needs in an economically efficient and humanitarian way.20 Policy change can be embraced in a context-specific way (sometimes working with and other times against the existing institutional framework; sometimes in incremental steps and other times in leaps and bounds) and provide quality healthcare to everyone regardless of employment, illness, or income level. It is important to acknowledge the role that culture plays in shaping a successful healthcare system.21 The unique cultural trappings of a healthcare system are just one reason that healthcare systems are not exactly transferable from one state to another, but it is unwise to discount culture

17 See generally James Smith & Erin Dexter, Implications of Upfront Charging for NHS Care: A Threat to Health and Human Rights, J. PUB. HEALTH (2018); Miqdad Asaria et al., How a Universal Health System Reduces Inequalities: Lessons from England, 70 J. EPIDEMIOLOGY AND CMTY. HEALTH 637-43 (2016); Julian Tudor Hart, The Political Economy of Health Care: Where the NHS Came from and Where it Could Lead (Sept. 1, 2010). 18 See generally Paul V. Dutton, Differential Diagnoses: A Comparative History of Health Care Problems and Solutions in the United States and France in French History, 24, 302-04 (June 1, 2010); Victor G. Rodwin, The Health Care System Under French National Health Insurance: Lessons for Health Reform in the United States, 93 AM. J. PUB. HEALTH 31 (Jan. 2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1447687/. 19 See generally Bo Burström et al., Equity aspects of the Primary Health Care Choice Reform in Sweden – a Scoping Review, 16 INT’L. J. FOR EQUITY IN HEALTH 29 (Jan. 2017); Anita Linell et al., The Swedish National Public Health Policy Report, 41 SCANDINAVIAN J. PUB. HEALTH POL’Y REP. 3 (Jan. 22, 2013); Bernt Lundgren, Experiences from the Swedish Determinants-Based Public Health Policy, 15 GLOBAL HEALTH PROMOTION 27 (June 1, 2008). 20 See A. Smullen & P.K. Hong, Comparing the Health Care Systems of High- Performing Asian Countries, 2 ASIA & PAC. POL’Y STUD. 347-55 (2015); Alicia Ely Yamin, The Right to Health Under International Law and Its Relevance to the United States, 95 AM. J. PUB. HEALTH 1156 (July 2005).

21 Chris Ham, Values and Health Policy: The Case of Singapore, 26 J. HEALTH POL., POL’Y & L. 739 (Aug. 2001) (“Health care systems do not develop in isolation. They are products of the societies in which they are embedded and of the values held to be important in those societies.”). 6 Asian-Pacific Law & Policy Journal [Vol. 20:2 altogether. Particularly for those states that need a dramatic change in thinking to muster the political will for reform and to inform ideal policy approaches, there is a lot that can be gained by understanding the rationale and feelings that consumers and producers engage in when they interact in a healthcare system. In this paper, I will first discuss those foundational documents in international law that form the basis for healthcare as a human right. Then, I will provide a brief overview of the healthcare systems in the United States, China, Singapore, and South Korea. I seek to evaluate the relative strengths and weaknesses of each system under international law and explain how specific healthcare policies, as well as the cultural values that underlie those policies, can inform healthcare reform in the U.S.

II. THE CASE FOR HEALTHCARE AS A HUMAN RIGHT Health has been recognized as a fundamental human right for as long as the idea of human rights has existed. As early as the 1850s, the international community saw the value in building a mechanism for international cooperation for disease prevention and control.22 Those efforts eventually led to the establishment of the World Health Organization (“WHO”) in 1948.23 The preamble of the WHO Constitution, signed by sixty-one states in 1946, contains a broad definition of health, declares health as a fundamental right, and describes in expansive terms the role that a state has in ensuring the health of all its citizens24: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition. The achievement of any State in the promotion and protection of health is of value to all. The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the fullest attainment of health.

22 See Michael McCarthy, A Brief History of the World Health Organization, 360 LANCET 1111 (2002). 23 See id. 24 See Constitution of the World Health Organization, in Basic Documents, WORLD HEALTH ASSEMBLY (Oct. 2006), http://www.who.int/governance/eb/who_constitution_en.pdf (last visited Apr. 17, 2018). 2019] Brack 7

Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.”25

Article 25 of the Universal Declaration of Human Rights (“UDHR”) states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”26 This declaration, adopted by the United Nations General Assembly in 1948, is arguably part of customary international law which would mean that all nations are bound by the provision that guarantees a universal right to an adequate standard of living for health and well-being.27 Like the broad definition in the WHO Constitution, the concept of health in the UDHR is tied to overall wellness which includes many factors. In practice, access to medical care (or essential medicines as defined by the WHO)28 is the specific right that is formally asserted in courts.29 It is important to note that domestic courts generally do recognize the right to medicines necessary to ensure health, unlike other social, cultural, and economic rights. A study of domestic case law around the world shows that it is possible to enforce the universal access to essential medicines, even in low-income and middle-

25 Id. 26 G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 25 (Dec. 10, 1948) [hereinafter UDHR].

27 See Hurst Hannum, The UDHR in National and International Law, 3 HEALTH AND HUMAN RIGHTS 145, 152 (1998) (“Even if states are not under a legal obligation to take human rights into account in the formulation of their foreign policies, the norms proclaimed in the Universal Declaration of Human Rights are increasingly utilized by governments in formulating foreign policy - including decisions regarding development assistance.”).

28 See Essential Medicines and Health Products, WORLD HEALTH ORGANIZATION, http://www.who.int/medicines/services/essmedicines_def/en/ (last visited Apr. 17, 2018) (“Essential medicines are those that satisfy the priority health care needs of the population.”). 29 See generally Claudia Marcela Vargas-Peláez et al., Towards a theoretical Model on Medicines as a Health Need, 178 SOC. SCI. & MED. 167 (2017); Marcela Vargas- Peláez et al., Right to Health, Essential Medicines, and Lawsuits for Access to Medicines – A Scoping Study, 121 SOC. SCI. & MED. 48 (2014); Hans V. Hogerzeil et al., Is Access to Essential Medicines as Part of the Fulfilment of the Right to Health Enforceable Through the Courts?, 368 LANCET 305 (2006). 8 Asian-Pacific Law & Policy Journal [Vol. 20:2 income countries, as part of the fulfilment of the right to health found in human rights treaties – especially when that right is provided for in State Constitutions.30 Since the establishment of the WHO and the passage of the UDHR, international human rights law has flourished and those sources of law that specifically support a universal right to healthcare have grown in number and specificity.31 The source of law that currently serves as the greatest protection of the right to healthcare is the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). This multilateral treaty, signed by 166 states and entered into force in 1976, contains the language that define the right and outlines the state’s obligations that are inherent in that right as well as the machinery for enforcement. Article 12 of the ICESCR states: “1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”32

30 See Hogerzeil et al., supra note 29, at 305. 31 See, e.g., UDHR, supra note 26, art. 25; International Covenant on Economic, Social, and Cultural Rights art. 12, Dec. 16, 1966, 993 U.N.T.S. 3; Comm. On Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health (art. 12 of the covenant), Aug. 11, 2000, U.N. Doc. E/C. 12/2000/4; Convention on the Rights of the Child art. 24, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]; Convention on the Elimination of All Forms of Racial Discrimination art. 5, Dec. 21, 1965, 660 U.N.T.S. 195 [hereinafter ICERD]; Convention on the Elimination of All Forms of Discrimination Against Women art. 12 and 14, Dec. 18, 1979, 1249 U.N.T.S 13 [hereinafter CEDAW]; American Declaration of the Rights and Duties of Man, OEA/Ser.L./V.II.23, doc. 21, rev. 6 (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V./II.82, doc. 6, rev. 1; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (Jan. 24, 2007). 32 International Covenant on Economic, Social, and Cultural Rights, art. 12, Dec. 2019] Brack 9

While not adopting the definition of health found in the WHO Constitution, this provision seems to borrow from that language in describing the right to health as the right to enjoy “the highest attainable standard” (as opposed to the “adequate standard” found in the UDHR) and specifying the physical and mental dimensions of health. Article 12 also makes explicit the connections between health and certain socio-economic conditions that are also created by the State.33 In this way, Article 12 is important for the promotion of the right to health because it “constitutes an important standard against which to assess the laws, policies, and practices of States parties.”34 There is at least one source of persuasive authority that can be used to clarify and possibly expand the scope of the right to enjoy “the highest attainable standard of physical and mental health.” In 2000, the United Nations Committee on Economic, Social and Cultural Rights issued an interpretation of the human right to health in Comment No. 14.35 Advocates for the universal right to healthcare rely most heavily on the language in this document:36 “Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity. The realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health program[]s developed by the WHO or the adoption of specific legal instruments. Moreover, the right to health includes certain

16, 1966, 993 U.N.T.S. 3. 33 Comment No. 14, supra note 31 (“[T]he reference in article 12.1 of the Covenant to "the highest attainable standard of physical and mental health" is not confined to the right to health care. On the contrary, the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.”). 34 Hogerzeil et al., supra note 29, at 305.

35 See generally The Right to Health, Fact Sheet No. 31, OFF. U.N. HIGH COMM’R HUMAN RIGHTS, http://www.ohchr.org/Documents/Publications/Factsheet31.pdf (last visited Apr. 17, 2018).

36 See The Right to Health, Fact Sheet No. 31, at 6 n. 3, OFF. U.N. HIGH COMM’R HUMAN RIGHTS, https://www.ohchr.org/Documents/Publications/Factsheet31.pdf (last visited Apr. 17, 2018); FRANÇOIS-XAVIER BAGNOUD CENTER HEALTH & HUMAN RIGHTS, Health and Human Rights Resource Guide (5th ed., 2018), available at https://www.hhrguide.org/introduction/. 10 Asian-Pacific Law & Policy Journal [Vol. 20:2

components which are legally enforceable.”37 While this language is not strictly binding upon any state, it still holds some weight in the movement to promote UHC around the world. Like all comments issued by a UN monitoring body, this comment speaks to the intent and purpose of the ICESCR. When the Committee describes the right to health as an “inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health”38states who are bound by the ICESCR must recognize poor health outcomes as a symptom of discrimination and inequality and create a progressive health system that works in tandem with other social justice efforts. This means establishing policies, institutions, and infrastructure that address health in a holistic way and promoting the social and economic welfare of a population in a way that supports those efforts.39 Alicia Ely Yamin describes the obligations of states as follows: (1) to respect the right to health by refraining from direct violations, such as systemic discrimination within the health system; (2) to protect the right from interference by third parties, through such measures as environmental regulation of third parties; and (3) to fulfill the right by adopting deliberate measures aimed at achieving universal access to care, as well as to preconditions for health. Thus, it is wrong to think of the right to health in terms of a package of services, even a package extending beyond medical care.40 But how are states supposed to meet these obligations while also meeting the unique needs of its population? The guidance provided by the United Nations can help to make UHC a workable solution for every state. The UN General Assembly has passed a resolution on “Global health and foreign policy” every year since 2008 that addresses “the health of the most vulnerable for an inclusive society.”41 In 2017, the UN General Assembly urged member states in one such resolution “to accelerate progress towards the goal of universal health coverage. . . with a specific emphasis on the poor, vulnerable and marginalized segments of the population.”42 The UN considers the concept of health to be a “precondition for and an outcome and indicator of” sustainable development.43 When health becomes a tool

37 Comment No. 14, supra note 31. 38 Id. 39 See Yamin, supra note 20, at 1157. 40 Yamin, supra note 20, at 1157. 41 G.A. Res.72/139, supra note 6. 42 Id. ¶ 6. 43 Id. at Preamble. 2019] Brack 11 that advances the eradication of poverty, builds a more inclusive society, and promotes sustainable economic growth, it becomes the responsibility of states to wield that tool wisely. Not only are member states urged to “determine and promote their own path towards achieving universal health coverage that comprises universal and equitable access to quality health services and quality, essential, affordable and effective medicines for all”44 but to also “tackle social, economic, and environmental determinants of health, as well as demographic challenges, including population ageing, provide social protection and adopt integrated, people-cent[ere]d, community-based and gender-responsive health services based on human rights[.]”45 The language in this United Nations (“UN”) resolution promotes UHC as a global norm that comes with a moral imperative and legal obligations, but it also describes it as a norm that should be tailored to suit the logistical needs of a country. There are a myriad number of ways to innovate and reform and there are numerous state-specific factors that defines an acceptable balance between efficiency and equity.46 It is not a question of promoting either market competition or government control, as most health policy experts would agree (and real-world examples would show) that established and successful healthcare systems usually have aspects of both, but rather careful and thoughtful coordination between the two.47 The specific balance is “shaped by social values and the political choices that follow from them.”48 In establishing UHC as a global norm, it is important to recognize that UHC is, by definition, neither a one-size-fits-all standard nor an unattainable ideal. In legal terms, the “highest attainable standard” of health is a reasonableness standard.49 This means that while certain factors like wealth, demographics, and culture will impact and, at times, limit a country’s ability to realize all of the benefits of UHC, those factors should not prevent a country from transitioning into UHC. The common reasons for not supporting UHC as a global norm do not comport with this nuanced understanding of what UHC is and what it can do for a country.

44 Id. 45 Id. 46 See William S. Hsiao, Comparing Health Care Systems: What Nations Can Learn from One Another, 17 J. HEALTH POL., POL’Y & L. 613, 616 (Aug. 1992) (“Such policy choices reflect a nation’s historical antecedents, culture, social values, and the balance of political power among the stakeholders in health affairs.”). 47 See M. Ramesh et al., Health Governance and Healthcare Reforms in China, 29 HEALTH POL’Y AND PLANNING 663, 670 (2014); see also Meng-Kin Lim, Shifting the Burden of Health Care Finance: A Case Study of Public-private Partnership in Singapore, 69 HEALTH POL’Y 83 (2004); Ham, supra note 21, at 744. 48 See Ham, supra note 47, at 744. 49 See Yamin, supra note 20, at 1156. 12 Asian-Pacific Law & Policy Journal [Vol. 20:2

Because studies show that comparative wealth is not a factor that limits a State’s capacity to ensure that everyone has access to basic healthcare, every State can implement UHC.50 And because any State, no matter the relative wealth, can experience inequality and prevalent financial risk in the healthcare sector, every State should implement UHC.51 On the micro-level, financial catastrophe (defined as healthcare payments at or exceeding forty percent of a household’s non-subsistence spending in any year)52 can lead to a reduction in spending on food, shelter, or education and even bankruptcy, and it can happen in any country, no matter the income level.53 It is easy to imagine how individual financial catastrophes can stagnate the overall economy. Even those states that boast high income and high quality-of-life measurements can suffer from inequality and the economic instability that results.54 Singapore and China both demonstrate UHC can be a feasible goal no matter the strength of the economy: with Singapore making universal healthcare a priority in the initial years of its independence, despite not having a strong economy, and China having a strong private market and impressive economic growth in a short amount of time, but having dismal inequality in access to healthcare and disastrous health outcomes as a result. Neither is demographics a limiting factor to the implementation of UHC. The success of UHC in some European countries has generated a few basic assumptions about what conditions are necessary for UHC, namely that homogenous societies that have a national identity fostered by a shared language, ethnicity, race, etc. are better candidates for a comprehensive universal healthcare system and those countries with disparate racial or ethnic groups will not have the social cohesion necessary for an effective and equitable healthcare system.55 However, the cultural and ethnic

50 See generally W.D. Savedoff et al., Political and Economic Aspects of the Transition to Universal Health Coverage, 380 LANCET 924-32 (2012); see also Sen, supra note 15, at 2-3.

51 See WORLD HEALTH ORGANIZATION, Health Systems Financing: The Path to Universal Coverage, at 5 (2010); Savedoff et al., supra note 50. 52 See Ke Xu et al., Protecting Households from Catastrophic Health Spending, 26 HEALTH AFF. 972, 973 (2007). 53 See id. at 973, 975 (“United States had rates in excess of 0.5 percent despite being a member of the Organization for Economic Cooperation and Development[;]” the mean for high income countries is 0.006). 54 See id. at 981 (“Countries that do not seek to reduce or are less successful at reducing inequalities in disposable income seem less willing, or able, to protect households from financial catastrophe.”). 55 Elizabeth Bruenig, The U.S. Could Have Nordic-Style Welfare Programs, Too, WASHINGTON POST (Mar. 29, 2018), https://www.washingtonpost.com/opinions/the- united-states-could-have-nordic-style-welfare-programs-too/2018/03/29/b94c76e8-3350- 11e8-94fa-32d48460b955_story.html?utm_term=.70a6a6d6bd32. 2019] Brack 13 heterogeneity of Singapore or China goes against the prevailing narrative and shows that other factors can be just as determinative in the success of a healthcare system. Cultural relativism also tends to be framed as an obstacle to the implementation of human rights law. The Vienna Declaration and Program of Action, adopted by the World Conference on Human Rights in Vienna on June 25, 1993, carefully establish human rights as universal law- that is, law that outweighs cultural and religious prescriptions: [t]he universal nature of these rights and freedoms is beyond question . . . [w]hile the significance of national and regional particularities and various historical, cultural, and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms.56 Nevertheless, because cultural values are intrinsic to the planning and implementation of a healthcare system, states should view cultural context as a strength and not a hindrance to UHC.57 Singapore, China, and South Korea have all found ways to make aspects of culture an integral part of their healthcare system that is conducive to the principles of UHC. Culture-specific conceptions of equity and accountability can help to inform and enhance policy change- making UHC reform something that people and governments can believe in, invest in, and depend on. Clearly, reforming a failed system, such as maximizing access to necessary health services and institutionalizing financial risk protection, presents serious political, legal, and economic challenges. There are concrete ways that Singapore, South Korea, and China have overcome these challenges, some of which are applicable to the United States. Beyond implementing the mechanics of a successful healthcare system, policy makers must also consider the ethical and moral values that a healthcare system purports to advance. Asian countries demonstrate specific tactics that show a way to navigate technical challenges, and also reveal the ways that cultural attitudes can inform sound policies.

III. THE U.S. APPROACH The lack of a legal right to healthcare in the U.S. becomes particularly demoralizing when one understands that in the rest of the world

56 UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER ON HUMAN RIGHTS, Vienna Declaration and Programme of Action, (Jun. 25, 1993) http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx; see also Hurst Hannum, The UDHR in National and International Law, 3 HEALTH & HUM. RTS 145, 154 (2014). 57 See Ham, supra note 21, at 739. 14 Asian-Pacific Law & Policy Journal [Vol. 20:2 universal healthcare is generally accepted.58 It is true that the United States has not yet ratified the ICESCR, but this does not mean that Americans are without protections under international law. Despite the lukewarm reception of human rights law in the United States, customary law still creates some obligations. Looking at state obligations arising out of multilateral treaties, the U.S. is still bound by Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination, which guarantees “the right of everyone, without distinction as to race, colo[u]r, or national or ethnic origin, to equality before the law, notably in the enjoyment of economic, social and cultural rights, in particular: the right to public health, medical care, social security and social services.”59 The United States fails this obligation due to the stark inequality in who can and cannot access healthcare. The UN has criticized the United States on one occasion for the lingering conditions of inequality in our healthcare system.60 A visible and contentious symptom of that inequality is the gap in insured and uninsured Americans, a gap that is disproportionately large and extremely costly in terms of money and in lives, but because of the spread of misinformation and political partisanship, few Americans understand just how large or costly it really is.61 Recent studies show that the failure to insure all people increases the number premature, preventable deaths in the U.S.62 The American Journal of Public Health published a widely-cited

58 See Yamin, supra note 20, at 115720 (“The United States is also the only industrialized country in the world that does not provide a plan for universal health care coverage and some kind of legal recognition of a right to care”); see also Koppelman, supra note 6, at 6 (“That means some system of social insurance, of a kind that exists in every rich democracy in the world except the United States.”). 59 See ICERD, supra note 31.

60 See generally UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER ON HUMAN RIGHTS, Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on Extreme Poverty and Human Rights (Dec. 15, 2017), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22533 (last visited Apr. 17, 2018); Implementation of the Programme of Action for the Second Decade to Combat Racism and Racial Discrimination, Report of Mr. Maurice Glele-Ahanhanzo, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance on His Mission to the United States of America from 9 to 22 October 1994, UN document E/CN.4/1995/78/Add.1, 12 (“In health, the delivery services are underfunded and inefficiently run, resulting in higher rates of infant mortality, communicable diseases and cancer and decreased life expectancy.”). 61 See generally Tara Sussman Oakman et al., A Partisan Divide on The Uninsured, 29 HEALTH AFF. 706 (Apr. 2010). 62 See, e.g., Teffie Woolhandler & David U. Himmelstein, The Relationship of Health Insurance and Mortality: Is Lack of Insurance Deadly? 167 ANNALS OF INTERNAL MEDICINE 424 (Sept. 19, 2017), http://annals.org/aim/fullarticle/2635326/relationship- health-insurance-mortality-lack-insurance-deadly; Mona Chalabi, Will Losing Health Insurance Mean More US Deaths? Experts Say Yes, GUARDIAN (Jun. 24, 2017), https://www.theguardian.com/us-news/2017/jun/24/us-healthcare-republican-bill-no- coverage-death; INSTITUTE OF MEDICINE, Care Without Coverage: Too Little, Too Late 2019] Brack 15 study in 2009 revealing that there were 46 million Americans without health insurance and in 2005 nearly 45,000 Americans died as a direct result of being uninsured.63 Even those who do have insurance coverage are suffering under the weight of inflated healthcare costs.64 In a 2016 U.S. Census Bureau report, that “11.2 million individuals were pushed below the poverty line last year thanks to out-of-pocket medical spending, including insurance premiums, prescription drug costs, and doctor's office co-pays.”65 There are other ways that inequity in the U.S. healthcare system manifests itself. Gender, sexuality, race, and geographic location give rise to systemic discrimination and implicit bias against certain Americans and negatively impact their access to and quality of care.66 To further complicate matters, whether maligned groups in society can seek protection from such discrimination depends heavily upon on the priorities and attitudes of leadership in executive/administrative positions.67 For this highly inefficient and arguably inhumane system to be as costly as it is (healthcare

(May 2002), http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/2003/Care- Without-Coverage-Too-Little-Too-Late/Uninsured2FINAL.pdf (“The Institute of Medicine estimated that having health insurance would reduce their mortality rates by 10 to 25%.”).

63 Andrew P. Wilper et al., Health Insurance and Mortality in U.S. Adults, 99 AM. J. PUB. HEALTH 2289, 2292 (2009). 64 Vann R. Newkirk II, The American Health-Care System Increases Income Inequality, ATLANTIC (Jan. 19, 2018), https://www.theatlantic.com/politics/archive/2018/01/health-care-income-inequality- premiums-deductibles-costs/550997/ (last visited Apr. 17, 2018).

65 Trudi Renwick & Liana Fox, The Supplemental Poverty Measure: 2015, U.S. CENSUS BUREAU 13 (Sept. 2016) https://www.census.gov/content/dam/Census/library/publications/2016/demo/p60- 258.pdf (“Without subtracting MOOP expenses from income, the SPM rate would have been 3.5 percentage points lower. In numbers, 11.2 million fewer people would have been classified as poor.”). 66 See, e.g., Dawson, supra note 13; Martin, supra note 12; Martin & Montagne, supra note 13; Yamin, supra note 20, at 1159 (“Discrimination affects multiple social determinants of health in the United States, as well as treatment, and minorities are far more likely to lack access to care than Whites; this demonstrates that discrimination within the health care system must be understood and addressed within the broader society, not just as a health issue but as a democracy issue.”). 67 Shabab Ahmed Mirza & Caitlyn Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care, CENTER FOR AMERICAN PROGRESS (Jan. 18, 2018), https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/discrimination- prevents-lgbtq-people-accessing-health-care/ (“The expansion of legislation, lawsuits, and administrative rule-making allowing for broad religious exemptions from providing services puts another impediment in the way of LGBTQ people receiving medical care. For those patients that do seek medical care and are turned away by providers, alternatives may not be easily accessible.”). 16 Asian-Pacific Law & Policy Journal [Vol. 20:2 expenditure amounts to nearly 18% of GDP spending)68 indicates a level of dysfunction so extreme that reform becomes a necessity. Despite all of the aforementioned defects in healthcare distribution and delivery, American politicians still applaud the private healthcare system in the U.S. because patients, or in this case, customers in the healthcare market presumably wield the power of choice.69 On the subject of those people who have little to no choice in what kind of healthcare they can access, some have argued that providing everyone with healthcare simply cannot and should not happen.70 In a lot of ways, people in the United States are hostile to the idea of universal healthcare and have been for a long time.71 The specter of “socialized medicine”, introduced during the Truman era, continues to plague the modern discussion on healthcare even though it is a term that for most, defies an articulable explanation.72 “The United States… is exceptional in terms of the popularity of the view that any kind of public establishment of universal healthcare must somehow involve unacceptable intrusions into private life. There is considerable political complexity in the resistance to UHC in the US, often led by medical business and fed by ideologues who want ‘the government to be out of our lives’, and also in the systematic cultivation of a deep suspicion

68 William A. Haseltine, AFFORDABLE EXCELLENCE: THE SINGAPORE HEALTHCARE STORY xiii (2013). 69 See, e.g., George W. Bush, State of the Union Address, Jan. 20, 2004 (“A government-run health care system is the wrong prescription. By keeping costs under control, expanding access, and helping more Americans afford coverage, we will preserve the system of private medicine that makes America’s health care the best in the world.”); RUDY GUILANI ON HEALTHCARE, HTTP://WWW.ONTHEISSUES.ORG/CELEB/RUDY_GIULIANI_HEALTH_CARE.HTM (“You and I should be making the decisions about what kind of health care we get with our doctors, not with a government bureaucrat . . . Government has never been able to reduce costs. Government never increases quality. We have the best health care system in the world. We just have to make it better.”) (last visited Jan. 21, 2019); Louis Jacobson, John Boehner Says U.S. Health Care System is Best in World, POLITIFACT (July 5, 2012) (statement of then-House Speaker John Boehner) (“Obamacare will bankrupt our country and ruin the best health care delivery system in the world.”). 70 Koppelman, supra note 4, at 12 (discussing tragic anti-statism and the perceived negative consequences of state intervention); see also Aviva Aron-Dine et al., The RAND Health Insurance Experiment, Three Decades Later, 27 J. ECON. PERSPECTIVES 197 (2013); Martin S. Feldstein, The Welfare Loss of Excess Health Insurance, 81 J. POLIT. ECON. 251 (1973). 71 See Gordon, supra note 14, at 23 (“By 1919, opponents had largely succeeded in portraying health reform (in the words of one New York doctor) as ‘Un-American, Unsafe, Uneconomic, Unscientific, Unfair, and Unscrupulous’ and attributing it’s support to ‘Paid Professional Philanthropists, busybody Social Workers, Misguided Clergymen and Hysterical Women.”); Atul Gawande, Is Healthcare a Right?, NEW YORKER (Oct. 2, 2017), https://www.newyorker.com/magazine/2017/10/02/is-health-care-a-right.

72 T.R. Reid, THE HEALING OF AMERICA: A GLOBAL QUEST FOR BETTER, CHEAPER, AND FAIRER HEALTH CARE 11 (2010). 2019] Brack 17 of any kind of national health service, as is standard in Europe.”73 Today, morality, bipartisan politics, economics, and many other personal values or beliefs allow people to have very different opinions on whether healthcare should be reformed and what role the government should play in that reform.74 Public opinion, and the troubled legacy that shapes it, consequently impacts the application and interpretation of domestic law on the issue of healthcare for all. Simply put, in the United States there is a negligible legal basis--- in federal, state, constitutional, or common law--- for people to be guaranteed a right to health care. In fact, constitutional case law seems to preclude the possibility of people exercising a positive right to healthcare. The U.S. Supreme Court held that “due process clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life.”75 Any attempt to change the law was met with strident opposition in and out of the courts. The fraught passage of the Patient Protection and Affordable Care Act (also known as the ACA or Obamacare), the legal challenges to the ACA brought to the Supreme Court, and the push to repeal it under the Trump administration all demonstrate the considerable struggles in implementing a more just and equitable healthcare system in the United States.76 When President Barack Obama was elected in 2008, insurers and health providers had very few incentives to protect the financial interests or promote the health of sick people.77 The only way to obtain health insurance was (1) through health benefits offered through certain employers (most believe that employers cover a portion of their employee’s insurance premiums, but some studies suggest that most of the expense comes out of wages) or (2) to pay the higher insurance rates in the non-group market made up of individuals, small businesses owners, and independent contractors who are not normally covered under the employment insurance

73 See Sen, supra note 15. 74 See Mollyann Brodie et al., Liking The Pieces, Not The Package: Contradictions In Public Opinion During Health Reform, 29 HEALTH AFF. 1125 (2010); Marc L. Berk et al., Exploring the Public’s Views on The Health Care System: A National Survey on the Issues and Options, 25 HEALTH AFF. 596 (2006), available at https://www.healthaffairs.org/doi/full/10.1377/hlthaff.25.w596. 75 DeShaney v. Winnebago Cty. Dept. of Social Services, 489 U.S. 189, 195 (1989); see also, Harris v. McRae, 448 U.S. 297, 317–318 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment). 76 Sarah Kliff & Dylan Scott, Trump’s Quiet Campaign to Bring Back Preexisting Conditions, VOX (Feb. 22, 2018), available at https://www.vox.com/policy-and- politics/2018/2/22/17033588/trump-obamacare-preexisting-conditions; Dylan Scott, Trump’s New Plan to Poke Holes in the Obamacare Markets, Explained, VOX (Feb. 20, 2018), available at https://www.vox.com/policy-and-politics/2018/2/20/17031640/short- term-insurance-trump-obamacare. 77 See Koppelman, supra note 4, at 28. 18 Asian-Pacific Law & Policy Journal [Vol. 20:2 scheme.78 In times of high premiums and high unemployment, insurers sought to eliminate those with pre-existing conditions from the cost-sharing pool of insured people to continue to make money.79 Those who needed health insurance the most- the ill and the financially insecure-often had very little options. It is important to note that the ACA, while ambitious in its redistributive aims, was never meant to institute universal healthcare; it was merely meant to be the first step to achieve that goal.80 Originally conceived by Republican Mitt Romney as a bipartisan measure, the ACA had two objectives: (1) expand Medicare coverage for the poor and (2) improve the dysfunction and prohibitive costs in the non-group insurance market.81 This would be achieved by (1) banning insurers from discriminating against applicants with preexisting conditions or from canceling policies after people get sick (2) requiring everyone to have insurance and to be part of the same insurance pool (3) subsidizing the healthcare costs of those who are too poor to pay the full cost of insurance.82 Not surprisingly, the political backlash to this grand redistributive scheme was swift and strong. It was not long before the conflict made its way to the U.S. Supreme Court. The Medicaid expansion was struck down by the Supreme Court for as an invalid exercise of the Congressional spending powers under the constitution.83 The court’s decision on the individual mandate was very interesting to the discussion on the constitutionality of universal healthcare.84 Opponents of the ACA called this

78 See id. at 29. 79 See id.

80 See id. at 31; see also Ezra Klein, A Bill Becomes a Law, WASH. POST (Mar. 22, 2010), available at http://voices.washingtonpost.com/ezra- klein/2010/03/a_bill_becomes_a_law.html (statement from the author) (“[C]omprehensive reform with an incremental soul.”). 81 See Koppelman, supra note 4, at 28. 82 See id. at 30. 83 See National Federation of Independent Business v. Sebelius, 567 U.S. 519, 570, 573 (2012) (“In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head…As we have explained, “[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post acceptance or ‘retroactive’ conditions.” Pennhurst, supra, at 25. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically.”). 84 See id. at 540 (“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority…Allowing Congress to justify federal regulation by pointing to 2019] Brack 19 part of the law unconstitutional as it forced Americans to buy something that they would otherwise choose not to which was, as they argued, never something that the framers intended for Congress to be able to do.85 Proponents of the ACA claimed that Congress was authorized to pass it under the Commerce Clause and the Necessary and Proper Clause because mandating that everyone purchase healthcare was the only way to ensure that everyone had adequate healthcare coverage.86 The U.S. Supreme Court ultimately upheld the ACA, but it was a very close case with a 5-4 vote.87 The Court initially appeared ready to accept the Republican argument against the mandate, but by labeling it as a tax and not a penalty, the Supreme Court dodged the question about whether Congress can compel all Americans to buy healthcare under the commerce clause.88 But the implication from the Justices--- particularly Justices Robert, Alito, Kennedy, and Scalia--- was that mandating that the rich subsidize the healthcare of the poor would be an unconstitutional infringement upon personal liberty.89 A big part of the rationale for this argument is the distinction between action (what the government traditionally regulated under the commerce clause) and inaction (what the government has supposedly failed to regulate before).90 In this case, forcing all Americans, especially the young and healthy ones who are typically disinclined to purchase health insurance, to buy insurance would be compelling their participation in commerce and this supposedly distinguishes the ACA from every other commerce clause case that dealt with economic activity that was already in progress.91 Without making such a distinction, the court opined, congressional power under the commerce clause would arguably be limitless.92 Such rationale ignores the reality that much of federal law does the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.”). 85 For a more detailed discussion on the highly politicized constitutional arguments for and against the ACA, see generally Koppelman, supra note 4, at ch. 3, 73- 107.

86 Id.; U.S. CONST. art. I, § 8, cl. 3; U.S. CONST. art. I, § 8. 87 See Koppelman, supra note 4, at 28. 88 See id. 89 Id. (“Congress couldn’t compel it [universal healthcare] under its commerce power, and incentives under the taxing power would only be permissible if they were somewhat ineffective.”). 90 See Sebelius, 567 U.S. at 543. 91 See id. 92 See id. (“Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s 20 Asian-Pacific Law & Policy Journal [Vol. 20:2 regulate inaction, but some justices found the argument to be compelling nonetheless.93 It is a rather novel argument to say that universal healthcare would be an unjustified assault on individual freedom, but it is one that resonated with many conservative politicians who view healthcare as nothing more than a commodity. Take, for example, the comments of Ben Carson, a former neurosurgeon and current U.S. Secretary of Housing and Urban Development, on the ACA. While he was courting conservative voters for his eventual presidential campaign back in 2013, Carson said: "Obamacare is, really, I think, the worst thing that has happened in this nation since slavery. And it is in a way, it is slavery […] because it is making all of us subservient to the government, and it was never about health care. It was about control."94 When asked later to clarify these comments, Carson elaborated: “Obamacare fundamentally changes the relationship between the people and the government. The government is supposed to respond to the will of the people. Not dictate to the people what they are doing. And with this program, we're allowing that whole paradigm to be switched around.”95 Such comments and the support that they garner demonstrate just how strong the political will against increasing access to healthcare in the U.S. can be. It is worth emphasizing that the ACA was meant to be a compromise: an unpopular piece of legislation that would lay the groundwork for future reform while still work around most of the existing players in the for-profit system- that was a modest attempt at increased coverage.96 In 2016, 27.6 million people living in the U.S. remained uninsured and the high cost of insurance remains a major barrier to increase coverage.97 The interaction between Congress and the U.S. Supreme Court

theory—empower Congress to make those decisions for him.”). 93 See Koppelman, supra note 4, at 109-16.

94 Sean Sullivan, Ben Carson: Obamacare Worst Thing ‘Since Slavery,’ WASH. POST (Oct. 11, 2013), https://www.washingtonpost.com/news/post- politics/wp/2013/10/11/ben-carson-obamacare-worst-thing-since- slavery/?utm_term=.dbdca20162e9. 95 Can Dr. Ben Carson Emerge from Crowded GOP Field? Plus, Rep. Michael Mccaul on Threat From Homegrown Terrorism, FOX NEWS (May 10, 2015), http://www.foxnews.com/transcript/2015/05/10/can-dr-ben-carson-emerge-from- crowded-gop-field-plus-rep-michael-mccaul-on.html. 96 See Koppelman, supra note 4, at 8 (“The ACA moves in the direction of shared responsibility, but there is still plenty of scope for the commodity model: rich people will continue to get better care than poor ones, and policies will be cheaper for the healthy than for the sick.”).

97 HENRY J. KAISER FAMILY FOUNDATION, Key Facts About the Uninsured Population (Nov. 29, 2017), https://www.kff.org/uninsured/fact-sheet/key-facts-about-the- uninsured-population/ (last visited Apr. 17, 2018). 2019] Brack 21 illustrates just how unprepared the U.S. government is, morally and legally, to adopt, not even universal healthcare, but expanded healthcare coverage as a responsibility. Under President Trump, there are serious doubts over whether the remaining provisions in the ACA will remain intact and effective. While the Republican rallying cry of “repeal and replace” turned out to be an unrealized goal,98 the opponents of the ACA found other ways to dismantle the reform that President Obama set in motion.99 Universal healthcare advocates in the U.S. should look to the successes and the failures of South Korea, China, and Singapore as they fight to maintain the ACA and eventually position themselves to push for further reform.

IV. THE ASIAN APPROACH Relying on an unregulated market to achieve an efficient and equitable distribution of healthcare services and products can no longer be an option for the United States government. As the country hopefully moves toward incremental reform, there are concrete lessons to be learned from the healthcare systems in China, Singapore, and South Korea. All three countries managed to expand insurance coverage (of the three countries, only China is still working towards realizing universal coverage) and all three formally recognize the human right to health, through constitutions, multilateral treaties, and/or policy papers. As these systems improve to correct oversights and account for changed objectives, they provide real- world examples of successful healthcare systems that complicate and ultimately strengthen the notion of UHC as a global norm. This paper will look closely at three specific healthcare policies that China, South Korea, and Singapore have instituted and the cultural values that underlie these reforms to reflect on what can be done to address the broken system in the United States. Keeping in mind that the systems in Singapore, China, and South Korea demonstrate only a few examples of the wide range of policies, administrative plans, and financing partnerships that States can employ, the purpose of this paper, like any other comparative analysis, is not to say that those East Asian systems can be replicated in the

98 See Jacqueline Thomsen, Trump Vows to Repeal and Replace ObamaCare ‘Disaster,’ HILL (Nov. 23, 2017), http://thehill.com/homenews/administration/361693- trump-vows-to-repeal-and-replace-obamacare-disaster. 99 See Sarah Kliff & Dylan Scott, Trump’s Quiet Campaign to Bring Back Preexisting Conditions, VOX (Feb. 22, 2018), https://www.vox.com/policy-and- politics/2018/2/22/17033588/trump-obamacare-preexisting-conditions; Trump Tries to Kill Obamacare by a Thousand Cuts, N.Y. TIMES (Feb. 21, 2018), https://www.nytimes.com/2018/02/21/opinion/trump-killing-obamacare.html. 22 Asian-Pacific Law & Policy Journal [Vol. 20:2

United States, but are used to “understand better the key factors that affect” healthcare in the U.S.”100 China is in the process of creating a more effective and socially accountable health workforce by realigning doctor incentives and instituting greater accountability measures in hospital governance.101 South Korea took advantage of pioneering healthcare technology in a responsible way- using health technology assessment and “pharmaeconomic” data to institute evidence-based decision making in drug reimbursement guidelines and increase access to affordable, quality medicines.102 Singapore is credited with promoting a sustainable and innovative public-private partnership for the purposes of healthcare finance by mandating personal saving in individual Medisave accounts while also building a comprehensive social safety net to subsidize those Singaporeans who cannot afford to pay for their healthcare.103 Managing drug costs, changing doctor incentives, and coupling personal responsibility with public spending are all smart reforms that are badly needed in the United States. In comparing the policies of one country to another, one questions whether there is a common thread that connects the novel innovations of the past and the ambitious reforms of the future in these three healthcare systems. Meng-Kin Lim argues that “historical and cultural legacies influence prevailing social values with regard to health care financing and resource allocation, and that the Confucian dimension provides a helpful entry point for a deeper understanding of ongoing healthcare reforms in East Asia.”104 Korea, Singapore, and China all share the historical legacy of Confucianism. The hallmark values of Confucianism105 all in some way shape healthcare governance and reform. The goal of providing essential medicines and healthcare services to all, regardless of employment status or income level, remains a priority that these East Asian governments take seriously. They manage to uphold the responsibility using different financial models as their foundation: the

100 Hsiao, supra note 46, at 614. 101 See generally Ramesh, supra note 47; Winnie Chi-Man Yip et al., Early Appraisal of China’s Huge and Complex Health-Care Reforms, 379 LANCET 842-83 (Dec. 3, 2012). 102 See generally Eun Young Bae & Eui Kyung Lee, Pharmacoeconomic Guidelines and Their Implementation in the Positive List System in South Korea, 12 VALUE IN HEALTH 36 (2009). 103 See generally Lim, supra note 47. 104 See Meng-Kin Lim, Values and Health Care: The Confucian Dimension in Health Care Reform, 37 J. MED. & PHIL. 545 (2012) [hereinafter Confucian Dimension]. 105 See id. at 547 (emphasizing the common good over the individual, strong and stable leadership over political pluralism, social harmony and consensus over dissent and confrontation, state intervention in social and economic affair over laissez-fair capitalism, and socio-economic well-being over civil liberties). 2019] Brack 23

British (Beveridgean) inspired tax-financed health care system in Singapore, the German (Bismarkian) inspired social insurance in Korea, and the Marxist inspired state-sponsored health care in China.106 One does not earn or consume healthcare benefits in these states, but rather enjoy healthcare as a necessary and tangible right that is safeguarded by the government. Furthermore, healthcare is actualized not only by people’s active participation in the market but also by people’s commitment to the common good. While it is true that healthcare as Americans know it, with western concepts of individual entitlements and equitable distribution,107 does not really comport with the Confucian world view, that does not mean that the policies of China, South Korea, and Singapore have no relevancy to the push for healthcare reform in the United States. The economic growth that accompanied the implementation of UHC in these countries resonates with the western audience.108

A. China: Promoting Accountability and Realignment of Doctor Incentives The Chinese government is clear about the right to healthcare its role in the provision of healthcare services and essential medicines. China has ratified several international treaties that guarantee the right to health, including the ICESCR in 2001.109 In addition, there are multiple provisions in the 1982 Chinese constitution that address health: Article 21: The state develops medical and health services, promotes modern medicine and traditional Chinese medicine, encourages and supports the setting up of various medical and health facilities by the rural economic collectives, state enterprises and institutions and neighborhood organizations, and promotes health and sanitation activities of a mass character, all for the protection of the people's health.110

Article 45: Citizens of the People's Republic of China have the right to

106 See id. 107 See id. at 554. 108 See generally Dustin T. Holloway, Self-Interest as Motivation for International Cooperation Toward Universal Healthcare, 5 HARV. PUB. HEALTH REV. 3, 4 (2015). 109 Shengnan Qiu & Gillian Macnaughton, Mechanisms of Accountability for the Realization of the Right to Health in China, 19 HEALTH HUM. RTS. 279, 280 (2017).

110 XIANFA art. 21 (1982) (China). 24 Asian-Pacific Law & Policy Journal [Vol. 20:2

material assistance from the state and society when they are old, ill or disabled. The state develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right.111

In addition to these constitutional provisions, various statutes and regulations address the protection of labor, women, and the environment that offer additional health-related guarantees.112 And in a 2009 policy document, Opinions on Deepening Pharmaceutical and Healthcare System Reform, the Chinese government declared healthcare to be a basic right and further claimed that the state had the ultimate responsibility to provide healthcare to its citizens.113 Despite the various legal protections and official pronouncements, China currently struggles to actualize this right for its citizens and manifest the benefits of UHC. In the early 2000s, the dysfunction of China’s decentralized healthcare system, exacerbated by an unfortunately-timed health crisis, caused the collapse of a broken system.114 But since that time, China has taken many successful steps to correct the mistakes of its past.115 From the 1950s -1980s, the Chinese healthcare system was typical of those in other communist countries – a highly centralized healthcare system with government-owned hospitals and state-employed physicians.116 Through this system and substantial government investment in public health projects, the country managed to achieve many public health advancements.117 After liberalization of the economy in the late

111 Id. art. 45. 112 Qiu, supra note 109, at 282 (“Articles 53 and 54 of the Labour Law provide health protection standards for worksites. The Women’s Rights Protection Law addresses many health-related rights for women, including health benefits related to childbearing, health and safety at work, and the prohibition against domestic violence. The Environmental Protection Law gives attention to quality air and water, which are underlying determinants of health.”). 113 Opinions of the CPC Central Committee and the State Council on Deepening the Health Care System Reform, CHINA.ORG/CN, http://www.china.org.cn/government/scio-press-conferences/2009- 04/09/content_17575378.htm (last visited Apr. 17, 2018). 114 See David Blumenthal & William Hsiao, Privatization and Its Discontents- The Evolving Chinese Healthcare System, 353 N. ENG. J. MED. 1165, 1166 (2005). 115See id. at 1168. 116 See Winnie Chi-Man Yip et al., Realignment of Incentives for Health-care Providers in China, 375 LANCET 1120, 1123 (2010). 117 See Blumenthal et al., supra note 114, at 1117 (“Infant mortality fell from 200 to 34 per 1000 live births, and life expectancy increased from about 35 to 68 years . . . [T]his public health apparatus achieved major gains in controlling infectious diseases through immunization and other classic public health measures, such as improved sanitation and the control of disease vectors, including mosquitoes for malaria and snails 2019] Brack 25

1980s, China abandoned a seemingly successful system in favor of adopting the U.S. approach to healthcare.118 Unsurprisingly, China’s overall efforts to jumpstart the economy through “radical privatization” created a failed healthcare system much like the one in the United States.119 Cutting the social safety net and relying exclusively on the private market to sustain the nation’s health in a booming economy turned out to be a serious miscalculation. As the disparity in rural and urban access to health grew and healthcare prices grew beyond what many middle-class consumers could afford,120 the government maintained a non-interventionist stance. When it became clear that the healthcare system had the potential to stall or even derail some of the rapid economic advancements made in both the cities and the countryside, China began to implement incremental changes to address some of the most pressing problems.121 In 1998, the central government required all private and state-owned enterprises to offer their workers medical savings accounts combined with catastrophic insurance. Imported from Singapore, the medical savings accounts require people to save their own money to pay for a portion of their personal medical expenses. The hope is that because medical savings accounts contain the patients' own money, patients will be sensitive to the costs of care but will still have protection against those expenses.122 This approach, however, still left large gaps in coverage. Up to 51% of the State’s urban population was still without insurance.123 As for the rural population, “officials launched experiments to create a very rudimentary financial safety net for health care” in 2002.124 But because of

for schistosomiasis. By the beginning of the 1980s, China was undergoing the epidemiologic transition seen in Western countries: infectious diseases were giving way to chronic diseases (e.g., heart disease, cancer, and stroke) as leading causes of illness and death.”). 118 See id. at 1123. 119 See id. at 1124. 120 Yip, supra note 116, at 1120 (“China’s fee-for-service payment and a price schedule that overpaid for drugs and high-technological diagnostics tests and underpaid for basic primary health care, and led providers to overprescribe drugs and diagnostic tests, resulted in a rapid increase in health expenditure and inappropriate treatment…With little availability of insurance coverage, rapid increase in health costs made access to care difficult, leading to major public discontent over unaffordable health care and impoverishment because of medical expenses.”). 121 See Blumenthal, supra note 114, at 1117. 122 See id. at 1124. 123 Id. 124 See id. at 1125. 26 Asian-Pacific Law & Policy Journal [Vol. 20:2 inadequate funding, this approach still left the rural population without access to primary care services and drugs.125 By the early 2000s, China’s healthcare exemplified the worst excesses and worst deprivations that one could expect of a system modeled after the United States. The 2003 severe acute respiratory syndrome (“SARS”) crisis prompted a slow and ineffectual response from the government and ultimately served as the impetus needed to enact nationwide reform.126 Minimal steps had to be taken to prevent another catastrophic outbreak of disease, and people living in crowded districts with very little knowledge of best public health practices were particularly vulnerable to such a risk.127 The New Health Reform (scheduled to be completed in 2020) has one basic goal: “ensuring every citizen equal access to affordable basic health care.”128 Following the example set by other successful healthcare systems, China based its reform on three fundamental tenants: [S]trong role of government in health, commitment to equity, and willingness to experiment with regulated market approaches. Within this framework, the reform offers a number of laudable changes to the health system, including an increase in public health financing, an expansion of primary health facilities and an increase in subsidies to achieve universal insurance coverage. However, it fails to address the root causes of the wastes and inefficiencies plaguing China's health care system, such as a fragmented delivery system and provider incentives to over-provide expensive tests and services.129 As China proceeds with its plans to revive and reform its healthcare system, there are two areas of improvement that might prove instructive for U.S. policy makers: increasing accountability and realigning physician incentives. The systemic problems in the Chinese healthcare system coupled with the lack of accountability mechanisms have fostered a deep public mistrust of the medical profession. An unfortunate consequence of

125 See id. at 1126. 126 See Development of China’s Public Health as an Essential Element of Human Rights, CHINA DAILY (Sept. 30, 2017), http://www.chinadaily.com.cn/opinion/2017- 09/30/content_32672511_2.htm. 127 See Blumenthal, supra note 114, at 1169 (“The central government has also invested substantial funds in rehabilitating its apparatus for controlling infectious diseases, though not other aspects of its public health system.” “The government has created an electronic system of disease reporting that is based at the district level. Every district also now has a dedicated infectious diseases hospital.”). 128 Yip, supra note 101, at 833. 129 Id. at 834. 2019] Brack 27 this mistrust is the well-publicized violent attacks against doctors and nurses by disgruntled patients and their family members – some of which resulted in death.130 In its efforts to correct these systemic problems in its healthcare system, China’s next steps will probably align with the UN’s recommendations to make greater investments in and promote decent work with adequate remuneration in the health and social sectors, enable safe working environments and conditions, effective retention and equitable and broad distribution of the health workforce, and strengthen capacities to optimize the existing health workforce, including by expanding rural and community-based health education and training and strengthening health professional education in both the institutional and instructional dimensions, to create a more effective and socially accountable health workforce.131 Accountability as westerners know it is not a popular concept in China, but the CCP has recently come to recognize its importance, along with transparency and information gathering, in the implementation of sound healthcare policies.132 Shengnan Qiu and Gillian Macnaughton identified five different forms of accountability in the Chinese context: (1) judicial accountability, the traditional human rights mechanism; (2) political accountability, including participation, as it plays a crucial role in justifying policy decisions; (3) administrative accountability, as health policies and strategies are carried out largely by administrative organs; (4) professional accountability, as quality health services must be delivered by qualified health professionals; and (5) social accountability due to the special value system in Chinese society.133 In China, both formal and informal mechanisms are used by people to hold health administrators and providers accountable for failures in the system, but all five of the mechanisms have serious limitations that do not exist in western countries. Qiu and Macnaughton argue that “although there is the basis of an accountability framework for the right to health in China, the effective operation of accountability mechanisms is hindered by longstanding cultural and political barriers.”134 In addition to strengthening accountability measures, China must also address improper incentives in a fee-for-service model to ensure that

130 See Yishi Jiang et al., Violence against doctors in China, 384 LANCET 744 (2014); Therese Hesketh et al., Violence Against Doctors in China, 345 5730 BMJ (2012). 131 G.A. Res. 72/139, supra note 6, ¶ 18. 132 Qiu, supra note 109, at 282. 133 See id. at 279. 134 Id. at 292. 28 Asian-Pacific Law & Policy Journal [Vol. 20:2 doctors and other healthcare providers take a people-centered approach to their work. As it turns out, when patients become customers, their health becomes secondary to profit-seeking behavior: overprescribing drugs and antibiotics, overusing of high-technological diagnostic tests, and relying on expensive curative rather than basic primary care.135 This trend is present in China as well as in the United States. “When Chinese doctors and hospitals were rewarded for providing high-tech services, they did exactly what U.S. doctors and hospitals have been doing for decades, with the same effects on use and costs.”136 Scholars Winnie Chi-Man Yip, et al. suggest that China can address these improper incentives by: (1) replacing fee for service payment mechanisms with payment methods that are aggregated and prospective and include companion incentives such as pay for performance and treatment protocols to assure that quality is improved, or at least not compromised and (2) motivate doctors to provide preventative and primary care of chronic diseases instead of curative care. encourages curative care is not suitable. Thus, incentives are being developed to motivate providers towards working on prevention and primary care of chronic diseases.137 China’s troubles and ongoing process of reform offer many lessons for the United States: [i]t seems clear that the radical privatization of health care systems carries enormous risks for the health of citizens and for the stability of governments. The Chinese example further reveals that government involvement may be essential to ensure an effective health care safety net and that, regardless of their language, history, or culture, providers will confer the services they are rewarded for offering. In fact, an overriding lesson of the Chinese experience is a warning to the rest of the world: if leaders anywhere care to, they can mimic and even exceed the inequities and inefficiencies that the U.S. health care system has exemplified for so long.138

135 See Yip, supra note 101, at 835. 136 See Blumenthal, supra note 114, at 1118. 137 See Yip, supra note 116, at 1122. 138 Blumenthal, supra note 114, at 1118. 2019] Brack 29

B. Singapore: Fostering Public-Private Partnership in Healthcare Financing Singapore’s healthcare system makes a strong argument for the practicality and efficiency of UHC. In its post-independence efforts to establish a politically stable and economically prosperous nation that other States would recognize, Singapore soon established the role that healthcare can play in both of those endeavors.139 Singapore took no action on the ICESCR - the State generally does not enjoy a reputation for embracing international human rights law – and there is no provision for a right to healthcare in Singapore’s constitution. The State, however, still exemplifies a commitment to providing all citizens with quality healthcare. In response to the 2012 UN Resolution on UHC, a Singapore representative “stressed the need for a system that ensured that the sick and poor would not be denied good quality healthcare regardless of their ability to pay, be affordable to both present and future generations, and encourage patients and doctors to choose effective care that addressed their needs.”140 To these ends, the Singaporean government has taken great strides to institute UHC and has become a world leader in creating a system that is affordable, sustainable, and acts as a driver of economic growth. Wanting to strike a balance between the competitive healthcare market in Hong Kong and the generous welfare program in the United Kingdom, Singapore established the world’s first medical savings account, Medisave, in its 1984 National Health Plan.141 The government mandates consumer savings. Everyone, regardless of employment status, pays into their individual savings accounts called Medisave. Up to three-fourths of national health expenditure comes from these personal accounts. One would think that exposing individual consumers to such a burden would be cruel or unrealistic, but with careful management of market factors, consumers can bear most, if not all, of the “true” costs of healthcare – not the inflated prices in a bloated healthcare system.142 Singapore’s healthcare system was designed to promote responsible health care utilization and to avoid the consequences of an “entitlement culture” where people become dependent on the government. The Singaporean experiment in healthcare turned out to be wildly successful and became the envy of most western countries. In the span of a single

139 See Haseltine, supra note 68, at 17. 140 Adopting Consensus Text, General Assembly Encourages Member States to Plan, Pursue Transition of National Health Care Systems Towards Universal Coverage, UNITED NATIONS (Dec. 12. 2012), https://www.un.org/press/en/2012/ga11326.doc.htm (last visited Apr. 17, 2018). 141 See Lim, supra note 47, at 85. 142 See id. 30 Asian-Pacific Law & Policy Journal [Vol. 20:2 generation, Singapore achieved universal healthcare, improved health outcomes, and achieved spectacular economic growth – earning one of the world’s highest per capita incomes.143 In 2014, health expenditure counted for just five percent of GDP.144 Singapore has also been pragmatic about the limitations of personal responsibility. Understanding that health is the cornerstone of a productive and stable nation, the government affirmatively makes provisions for those who need assistance paying healthcare bills. The safety net is very much intact, subsidizing the healthcare spending of the old, young, and indigent. Medishield exists for catastrophe spending (for which the premiums can be paid through Medisave accounts) and Medifund (which is a government endowment fund) exists for those who are completely without the ability to pay into a personal account or otherwise have no other recourse. When Singapore seamlessly married personal responsibility and generous government subsidies in one private-public partnership, it set the standard that would later be articulated in a UN General Assembly Resolution. The UN General Assembly calls upon States to develop “innovative and sustainable mechanisms to ensure necessary and sustained health financing and enhance international coordination and an enabling environment at all levels to strengthen health systems, and promote universal access to quality health services, including through partnerships with civil society and the private sector.”145 This innovative approach was Singapore’s way to recognize a universal right to healthcare in a way that prioritized equity through a Singaporean perspective.146 It is important to note that for Singaporeans, the concept of equity in health is different from that of other western countries. In Singapore, there is an intentional disparity in care. Consumers can choose to go to any doctor or hospital, public or private, and for those who are willing and able, some additional private insurance can be purchased.147 For more money, consumers can get more amenities and more comfort in their healthcare experience.148 No one goes without healthcare because of an inability to pay, but one cannot say that the Singaporean model is one where there is “equal access to care for equal need.”149 Both shrewd government

143 See Haseltine, supra note 68, at 1. 144 See id. at 16. 145 See id. at 17.

146 See id.; Ham, supra note 21, at 740. 147 See Confucian Dimension, supra note 104, at 546. 148 See id. at 547. 149 Id. 2019] Brack 31 planning and the discipline and trust of the Singaporean people make this system successful.150 Looking closer at the distinctive features of Singapore’s healthcare system, it is worth noting that the strengths of the system are reflected in the “Five Shared Values” taught in Singaporean schools. The similarities between the Five Shared Values and Confucian values are clear: (1) nation before community and society before self, (2) family as the basic unit of society, (3) community support and respect for the individual, (4) consensus, not conflict, and (5) racial and religious harmony. In light of the first and fourth values, it makes sense that the government was heavily involved in the various aspects of implementing and managing this highly efficient health care system.151 No doubt the incredible political stability – the People’s Action Party (“PAP”) has been in power since Singapore gained its independence from the British in 1965 – helped to solidify the government’s control in this process.152 With this kind of control and public trust, the Singaporean government has managed to keep costs down where the private market has failed to do so and extended coverage to all its citizens, regardless of employment or geographic location. The healthcare system is also fortified by a general understanding by the government that “improvement in health conditions and care had to be approached as an integral and inseparable part of the overall development planning for the country.”153 Such an attitude has yielded innovations in urban planning that supplement the improvements made in the healthcare system.154 Furthermore, the government is able to make whatever incremental tweaks need to be made to the system as time and experience reveal possible shortcomings. The government anticipates diverting resources and creating infrastructure to suit the needs of a rapidly aging population and to manage negative impacts to the system that will result.155 The government has increased healthcare spending from $4 billion in 2011 to $9.8 billion in

150 Id. 151 Ezra Klein, Is Singapore’s ‘Miracle’ Health Care System the Answer for America?, VOX (Apr. 25, 2017), https://www.vox.com/policy-and- politics/2017/4/25/15356118/singapore-health-care-system-explained (“Singapore’s government controls and pays for much of the medical system itself-hospitals are overwhelmingly public, a large portion of doctors work directly for the state, patients can only use their Medisave accounts to purchase preapproved drugs, and the government subsidizes many medical bills directly.”). 152 See Haseltine, supra note 68, at 4. 153 See id. at 2. 154 See id.

155 See Linette Lai, Programmes That Help with Seniors’ Needs, STRAITS TIMES (Feb. 20, 2018), http://www.straitstimes.com/singapore/health/programmes-that-help- with-seniors-needs (“[O]ne in four Singaporeans will be over 65 by 2030.”). 32 Asian-Pacific Law & Policy Journal [Vol. 20:2

2016, with most of that increase going towards “building new nursing homes and senior care cent[er]s, subsidies for fees and manpower costs.”156 In line with the second and third shared values, financial responsibility will ultimately lie with the individual, the family, and the community with the state as a last resort.157 No matter what the challenge, Singapore is determined to keep the public health under strict management – simultaneously fearing the cultivated dependence of a state-funded national health insurance scheme and the potentially destabilizing nature of a laissez-faire healthcare market. A former Singaporean Health Minister once said: “[I]f the public healthcare system is too small, it becomes the ‘tail that tries to wag the dog.’158 Once a private healthcare system becomes the dominant entrenched player, it is very difficult to unwind it — there are many vested interests and many pockets will be hurt.”159 Chris Ham summarizes the Singaporean lesson as follows: “If citizens feel valued through their employment and incomes then it may be possible to persuade or compel them to take greater responsibility for their welfare. If, on the other hand, they feel excluded from the economy and society, then there is no economic or moral basis for expecting them to take a stake in the system.”160 C. South Korea: Using “Pharmaeconomic” Data and Health Technology Assessment to Rationalize Drug Spending The individual right to healthcare is protected in articles 35 and 36 of South Korea’s 1948 Constitution. Article 35: 1. All citizens shall have the right to a healthy and pleasant environment. The State and all citizens shall endeavor to protect the environment. 2. The substance of the environmental right shall be determined by law. 3. The State shall endeavor to ensure comfortable housing for all citizens through housing development policies and the like.

Article 36:

156 See id. 157 See Confucian Dimension, supra note 104, at 522. 158 See Haseltine, supra note 68, at 18. 159 See id. at 8.

160 Chris Ham, Learning From the Tigers: Stakeholder Health Care, 347 LANCET 951, 953 (1996). 2019] Brack 33

1. Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes, and the State shall do everything in its power to achieve that goal. 2. The State shall endeavor to protect mothers. 3. The health of all citizens shall be protected by the State.

The right to healthcare is explicit but extremely vague. Such language might have reduced this important right to little more than aspirational words, but fortunately, international law further substantiates this right. South Korea generally has a positive reputation for signing and following international human rights law. In addition to ratifying the ICESCR, South Korea has ratified three other treaties that contain provisions that support a right to healthcare.161 South Korea has seriously endeavored to follow the obligation to provide the highest attainable standard of physical and mental health to all its people, achieving results that set the standard for other low to middle-income, rapidly industrializing states. In 2015, the Organization for Economic Cooperation and Development (“OECD”) ranked South Korea among the top third of states that provide access to care for 95 - 100% of its population.162 But this universal right to healthcare was instituted in a system that relied heavily on private insurers and healthcare providers. The lack of government controls threatened the universal access to healthcare at one point in time. The government’s unwillingness to regulate medical providers and pharmacists beyond fee schedules left the system open to widespread abuse and inefficiencies. After four years of fierce opposition from the supply-side stakeholders in this inefficient NHI system, South Korea managed to institute a single-payer system in 2004.163 This transition illustrates the efficacy of a single-payer system as well as the factors that allow for reform in an otherwise intractable democracy. It is helpful to understand the history that led to the need for single- payer reform of the South Korean healthcare system. Before democracy took root in the late 1980s, South Korea managed to make the government- mandated transition to universal coverage in just twelve years – starting with the 1977 National Health Insurance Act which provided workers in

161 ICERD, supra note 31; CEDAW, supra note 31; CRC, supra note 31.

162 Health at a Glance 2015: OECD Indicators, OECD (2015), http://www.keepeek.com/Digital-Asset-Management/oecd/social-issues-migration- health/health-at-a-glance-2015_health_glance-2015-en#page26 (last visited Apr. 17, 2018). 163 See Smullen, supra note 20, at 41 (“South Korean reformers were constrained by stronger opposition in the legislature and increasing disagreement between groups in civil society.”). 34 Asian-Pacific Law & Policy Journal [Vol. 20:2 large corporations (over 500 employees) with healthcare.164 Using the Japanese healthcare system as a model, South Korea used decentralized medical insurance societies to incrementally expand coverage to different groups of people until the entire nation was covered.165 But these societies distributed healthcare coverage based upon the employment type and geographic location of the participants, and they soon grew to 350 in number.166 Rather than regulating the behavior of a multitude of private insurers and healthcare providers, the government was mostly involved with mandating the funding and distribution of healthcare. Three years prior to 2000, due to demand-side and supply-side failures, South Korea’s healthcare system began operating on a deficit. The government’s laissez-faire approach to monitoring and regulation of healthcare services drove up administrative costs, prompted stark inequality in distribution of medical care, and fueled a surplus of private healthcare providers who were incentivized to behave in ways that were detrimental to consumers – all problems that are present in the U.S. healthcare system.167 The incremental switch from a profit-based, multi-payer system to

164 See Jong-Chan Lee, Health Care Reform in South Korea: Success or Failure?, 93 AM. J. PUB. HEALTH 48 (2003) (“This remarkable achievement started modestly in 1977 when the government mandated medical insurance for employees and their dependents in large firms with more than 500 employees. In 1989, national health insurance (NHI) was extended to the whole nation. Most Western analysts were surprised. Many predicted Korean NHI would falter financially, but trends in financial receipts and disbursements from 1990 to 1995 showed no sign of financial instability. Everything went smoothly in both administration and financing in the first half of the 1990s.”). 165 See id. at 50.

166 See id. at 52; SANGGON NA & SOOMAN KWON, BUILDING SYSTEMS FOR UNIVERSAL HEALTH COVERAGE IN SOUTH KOREA, WORLD BANK 14 (Mar. 2015); Smullen, supra note 20, at 41. 167 Na et al., supra note 166 (“As government tightly regulated the fee schedule for (both public and private) providers through health insurance, lower fees (than customary fees) were applied to enrollees of health insurance, which provided an incentive to join health insurance.” “The multiple insurance societies resulted in high administrative costs, inequity across societies, and limited risk pooling, and many funds in rural areas suffered from fiscal deficits…Health insurance contribution for the self-employed as a proportion of income in poor rural areas was higher than that in rich urban areas. Finally, the rise in medical care utilization was met by a rapid increase in the supply of private- sector providers.” “This created financial incentives for physicians and pharmacists to dispense more drugs and to select those with greater profit margins, a phenomenon aggravated by the fact that physicians were able to purchase drugs at prices that were much lower than the reimbursement rates set by the health insurance. In addition, because the government strictly regulated fees for medical services through a fee schedule, dispensing drugs was more profitable for physicians than providing medical services. The perverse financial incentives for physicians and pharmacists and easy consumer access to drugs contributed to the high proportion of total health expenditure spent on pharmaceuticals in Korea.”). 2019] Brack 35 universal, single-payer system took four years.168 Reformers faced serious opposition in the form of nationwide doctor strikes and made some concessions in the form of a substantial increase in regulated physician fees,169 but by 2004, the South Korean government managed to eliminate the cumulative deficit and devised several long-term cost management methods.170 One of those methods was aimed at making drug spending decisions more cost-effective. In 2008, South Korea became the first Asian country to officially use economic data to effect efficient resource allocation in healthcare.171 This meant that economic measurements (pharmaeconomic data) would impact “pricing, relative values, and the extent of insurance coverage of new medical technologies, encompassing pharmaceuticals, equipment, and diagnostic technology.”172 Anytime a company applies to introduce a drug or medical device on the national reimbursement list, it must submit economic data that will allow the Health Insurance Review and Assessment Service (“HIRA”) to make informed decisions about the drug’s regulation- making sure that limited “resources service the highest priorities of the population’s health needs in an efficient way.”173 This reform made sense given that South Korea was a world leader in healthcare technology adoption and technology use in healthcare tends to drive up price instead of decreasing it.174 No one can say for sure if this measure will actually decrease healthcare spending in South Korea. There is, however, some evidence from

168See id. at 14 (“In 2000, two major health care reforms were implemented simultaneously to solve some of the key challenges generated by the implementation of the NHI financing structure. The high administrative costs created by the proliferation of insurance societies, the inequity in contributions across them and the limited cross- subsidization from the better off to the poor led to the merging of insurance funds into a single insurer system. The perverse financial incentives that existed for physicians and pharmacists to prescribe more medicines in order to increase their income led to the separation of drug prescribing and dispensing.”). 169 See id. at 14-15 (“Creating a single payer aimed to increase the efficiency of risk pooling and minimize administrative costs. . . . [T]he progressive government, the president’s keen interest in social policy, and active participation of civic groups played important roles in the two reforms, which were discussed for a long time but not implemented due to opposition of vested interest groups.”); see Smullen, supra note 20, at 349 (“South Korean reformers were constrained by stronger opposition in the legislature and increasing disagreement between groups in civil society.”). 170 Bong-Min Yang et al., Economic Evaluation and Pharmaceutical Reimbursement Reform in South Korea’s National Health Insurance, 27 HEALTH AFF. 179, 180 (2008). 171 See id. at 181. 172 Id. at 183. 173 Id. at 180. 174 See id. 36 Asian-Pacific Law & Policy Journal [Vol. 20:2 other countries that the cost of creating economic data will be passed along to the consumer anyway.175 But South Korea must take measures now to prevent future cost inflation and healthcare spending deficits and technology management is one area that does not fare well under a laissez- faire approach. South Korea’s decision to task drug and device manufacturers with providing the information necessary to better evaluate the healthcare needs of its population aligns nicely with the responsibility to “promote and strengthen, as appropriate, their dialogue with other stakeholders, including civil society, academia and the private sector, in order to maximize their engagement in and contribution to the implementation of health goals and targets through an intersectoral and multi-stakeholder approach, while at the same time safeguarding public health interests from undue influence by any form of real, perceived or potential conflict of interest, through the management of risk, the strengthening of due diligence and accountability, the promotion of policy coherence and an increase in the transparency of engagement.”176 As the South Korean government struggles to position itself as an effective steward, manager, and regulator of healthcare resources, the U.S. can learn more about how to create cost-management policies that are proactive instead of reactive.

V. CONCLUSION All governments can and should implement UHC. Asian countries can demonstrate how to effectively balance equity and efficiency as well as how people and governments should conceive of health and its role in the social contract between states and citizens. The belief that commodifying healthcare is an acceptable way to distribute goods and services for the promotion of health and well-being has proved to be a false one. We can no longer accept a healthcare system that excludes groups of people, limits access to necessary care, and pushes people into poverty. As the definition of health becomes more inclusive and forward-thinking and our understanding of how social determinants affect health improves, the capacity of a right to health as a vehicle for social justice grows. Now, more than ever, it is vital that states promote and protect the universal right to health. International law is how governments are held accountable. Even when States claim sovereignty as a defense for resisting the implementation of universal health coverage, international law provides the standards for evaluation as well as mechanisms for enforcement. Therefore, a global adherence to international law is paramount to fully realizing health as a human right for all people.

175 See id. 176 Id. 2019] Brack 37