Essay: A refugee’s right to healthcare

By the end of 2017, according to a report by the UN refugee agency, 68.5 million people were displaced worldwide, a record high in human history (United Nations High Commissioner for Refugees). The concurrent influx of forcibly displaced persons over international borders worldwide has served as a catalyst for a number of difficult and multidimensional debates regarding how communities and nations can best accommodate these new populations. Among these questions, one of the most challenging for nations to answer is how, and to what extent, to provide healthcare to refugees and migrants. Though infrastructural systems are in place attempting to target the specific needs of migrant groups, current policies have been ineffective at remediating existing systematic health disparities faced by migrants as compared to native populations. This paper first seeks to outline the international and national legal frameworks which provide refugees with the right to treatment, followed by an examination and comparison of current policy and ground level implementation in Germany, which is home to a significant population of migrants from Syria and neighboring countries, versus the United States of America, which hosts significant populations of migrants from Central and Latin America.
An analysis of the efficacy and shortfalls of current health policy responses to sizeable populations of forced migrants is incomplete without consideration of the fundamental question of whether nations have an obligation to provide certain guaranteed health provisions and, if so, to whom. International human law has established health as a right. The Constitution of the World Health Organization recognizes the fundamental right of every human being to the enjoyment of the highest attainable standard of health “…without distinction of race, religion, political belief, economic or social condition” in its Preamble (World Health Organization). Moreover, in the widely adopted UN Universal Declaration of Human Rights, the right to health is proclaimed as the right of everyone to ‘‘a standard of living adequate for the health and well-being of himself and of his family, including…medical care and necessary social services’’(United Nations). Despite the utilization of language that provides extensive room for interpretation and variation in definition and practice, the right to health, having been established in international jurisprudence, creates a legal obligation for states to ensure availability to at least some degree of accessible, quality healthcare.
On a more regional level, the right to health is affirmed. In section eleven of the European Social Charter, it states that “Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable,” and in the more recent and thorough European Union Charter of Fundamental Rights, article thirty five enumerates “Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities”(Council of Europe; European Union). In Germany, the right to health, while mentioned in the constitutions of several Bundesländer, or German states, is not specifically enumerated in the Federal Constitution, where the closest provision is arguably the “right to life and physical integrity”(McHale 284).
Predictably, the level of available care and the bureaucratic means by which to attain such care vary substantially based on an individual’s legal status in a nation. In Germany, the right to asylum is stated in article 16a of the German Basic Law, and is granted to anyone who flees political persecution, with political persecution being defined as persecution that causes specific violations of individual rights and, due to its intensity, excludes the individual from the “general peace framework of the state unit” (Library of Congress). In terms of provisional access to health care, those classified as ‘Asylbewerber’ (asylum seekers) and ‘geduldete’ (tolerated), are eligible through the German Asylum Seekers Benefits Act (section 4 AsylbLG) for primary care for acute conditions or for pain for which “necessary medical or dental treatment has to be provided including medication, bandages and other benefits necessary for convalescence, recovery, or alleviation of disease or necessary services addressing consequences of illnesses,” with these restrictions also applying to children and adolescents (Fox). Undocumented migrants in Germany face these same restrictions with regards to accessing medical care. Under these laws, pregnant women and those who have recently given birth are eligible to receive the same care as German citizens (Fox). It is also worth noting that, after fifteen months of having received benefits in concordance with the Asylum Seekers’ Benefits Act, asylum seekers typically are granted access to the social benefits elucidated in the Twelfth Book of the Social Code (Sozialgesetzbuch), meaning they can access health care in accordance with the same policies that apply to German citizens who are recipients of social benefits (Fox).
A refugee’s right to healthcare in the United States is somewhat more ambiguous and tenuous than in Germany. The U.S. is one of eighty-six countries with constitutions that do not specifically grant citizens or the general populous any guaranteed right to health care (Wheeler). Though availability of healthcare in the U.S. was substantially increased with the passage of the Affordable Care Act (ACA), the policy did little to increase coverage for the approximately 11.3 undocumented immigrants residing in the United States as of 2016, explicitly specifying that an undocumented immigrant “shall not be treated as a qualified individual and may not be covered under a qualified health plan in the individual market that is offered through an Exchange” (Sommers). Medicaid, the predominant coverage resource for low-income citizens, and Medicare, which provides health coverage for elderly adults, both almost entirely bar undocumented immigrants from participation. The sole federal health program available to undocumented immigrants in America is Emergency Medicaid, which provides coverage only in emergency departments and acute care in inpatient settings; this program also features significant requirements that bar participation (Sommers). Thus, the most protective policy offered by the federal government which fully covers undocumented immigrants is the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals to provide care to an individual with an “emergency medical condition” with no consideration given to immigration or insurance status (Sommers). Consequently, there is no domestic legal right to medical treatment for refugees except in the event of a medical emergency.
Beyond legal and ethical obligations, it is worth noting that members of the medical community have endorsed expanding the amount of coverage and services available for migrant populations. In Germany, numerous doctors, the Association of Statutory Health Insurance Physicians, and the German Medical Association have all criticized the German Asylum Seekers Benefits Act, arguing that strict interpretation precludes individuals with chronic medical conditions such as disabilities, cardiac issues, or diabetes from receiving adequate care under the criterion of coverage solely for acute or emergency care (Fox). This lack of access to preventative care, wellness checkups, and general services to treat long term illnesses ultimately contributes to a degradation of health and thus quality of life for refugees in the long term (Fox).
Similarly, in the U.S., the number of community health centers which serve undocumented immigrants is insufficient and centers are often restricted by intense immigration-related policies (Sommers). Accordingly, undocumented immigrants in the U.S. often depend on charity care provided by private practitioners, paying out of pocket, or abstaining from treatment or preventative care for medical issues and allowing the health problem to metastasize until emergency services are justified (Sommers). In other words, undocumented immigrants typically have no choice when faced with a serious health issue other than passively watching their health decline, often resulting in long term damage or a need for more serious or invasive interventions, a far leap from the United Nations goal of ensuring “the highest attainable standard of health.” Though emergency care is guaranteed, it does not provide for treatment to life threatening conditions that are not “emergent,” and it still permits billing for all services; in other words, “Although EMTALA prevents hospitals from literally allowing people to die on their doorsteps, it provides neither financial protection nor comprehensive access to care” (Sommers). These restrictive policies have directly led to a medically marginalized group, comprised of millions of individuals, in which the ensured standard for health is solely the prevention of imminent death.
Amidst outcries in both nations that current policies are too generous and straining budgets, extant laws, contrary to common rhetoric, actually cost nations more money rather than helping save it. In Germany, one study found that current restrictive policies have increased the cost of healthcare by 376-euros per year for each asylum seeker (Kuepper). Similarly, in the U.S., preventable emergency department visits and treatments comprise a significant portion of wasteful healthcare expenditures, with some estimates asserting that as high as fifty six percent of all ER visits in the U.S. are avoidable (New England Healthcare Institute 2). The lack of services available to undocumented immigrants and asylum seekers contributes to inefficient healthcare spending because preventative care is overwhelmingly cost effective in the long run. Moreover, uninsured individuals have been found to utilize emergency services in non emergency medical circumstances because emergency departments see all patients, regardless of insurance status (New England Healthcare Institute 5).
Over the long term, restrictive policies that fail to provide access to comprehensive health care have contributed to unjustifiable health discrepancies between refugees and undocumented immigrants versus citizens. Though there is a well documented “migrant effect” in which individuals driven to migrate for economic purposes are generally younger and healthier than the population at large, there is an equally well documented flip side in which asylum seekers and refugees typically are generally less healthy (Bradby and Humphris). Many of the main health problems affecting refugee populations are attributed to living in refugee camps and side effects of undertaking long and often dangerous journeys (i.e. malnutrition, infectious diseases, trauma symptoms) (Bradby and Humphris). In Germany, migrants have a 40% lower age standardized overall mortality than the majority population (Brzoska et al.). Another study in Germany examining illegality as a risk factor for poor health at a specific Berlin clinic found “… the effects of illegal status resulted in four areas of disparities: 1) limits to the overall quality and quantity of care for mothers and infants; 2) delayed presentation and difficulties accessing a regular supply of medication for patients with chronic illnesses; 3) difficulties in accessing immediate medical attention for unpredictable injuries and other acute health concerns; and 4) a lack of mental health care options for generalized stress and anxiety affecting health” (Castañeda). Essentially, the problematic nature of inadequate healthcare for refugees is twofold; not only are rights and dignity being infringed upon through grotesquely scant accessibility, but this injustice is exacerbated by the increased vulnerability associated with illegality and lack of defined status as a whole.
For displaced individuals, the struggle to find improvements in living conditions and higher quality services is evidently not as straightforward as simply migrating. Though healthcare is acknowledged as a right, that right is not clearly evident in context of ground level implementation. In the U.S. and Germany alike, current laws have left already vulnerable migrants without access to many fundamental services, with degradation of overall health and systematic efficy issues following suit. Though there are legitimate arguments and perspectives on many sides of the migration debate, what is unequivocally not justifiable is the existence of a medical lower echelon of millions of individuals who have access only to the bare bones of health services.