The Affordable Care Act and Distributive Justice: Is it Ethical to Exclude Undocumented Immigrants?

By Ken Ochs

Immigration reform and healthcare reform are two of the most polarizing ongoing political debates in recent American history. In the absence of federal immigration reform and in the presence of a new federal healthcare system – the Affordable Care Act (ACA) – which requires legal status to obtain health insurance, there is now opportunity for everyone’s healthcare situations to improve except those of the undocumented immigrant. What are the ethical implications of excluding this large segment of the population from the prospect of improving their healthcare situations?

Irrespective of one’s opinions on the value of the ACA, illegal immigration, entitlements, and the role of government in general, there exist two grave realities—with wide-ranging implications—that can hardly be contested. Firstly, immigrants to the United States have always encountered challenging health and healthcare issues that have only complicated their relocation experiences. Throughout the American immigrant experience, maintaining good health and obtaining healthcare have been among immigrants’ principal struggles.

“Whether English, Irish, or Eastern European, immigrants to the United States faced living and work conditions ripe for illness and disease,” according to Sal Acosta, Ph.D., Assistant Professor of History at Fordham University. In most cases, these immigrants entered American society at the lowest socioeconomic levels. At that time, the ability to finance healthcare was problematic for people of low socioeconomic status irrespective of whether a person was born in the United States or had immigrated.

Secondly, the ACA’s fundamental changes to the healthcare system exclude undocumented immigrants entirely from any potential for improvement to their current situations, and, arguably, will make their circumstances much worse. Hypothetically, if the ACA is entirely effective, and every American gains access to health coverage, this would leave undocumented immigrants in a very bleak social category of their own. The means and the services on which they relied upon before the ACA—whether the volunteer work of physicians, community health clinics, and/or emergency rooms—will likely undergo policy changes that direct resources away from those without healthcare coverage. The adoption of the ACA, which requires legal status to obtain health insurance, coupled with the lack of federal immigration reform, means that there is now opportunity for everyone’s healthcare situations to improve — except those of the undocumented.

The combination of these two certainties present an ethical concern of serious magnitude that must be immediately introduced into the fervent national discussion before it is too late. Given the recent sense of urgency to “get covered!” as well as the imminent gridlock in Congress in regards to passing a comprehensive immigration reform bill in the near future, the ACA’s effects on undocumented immigrants represent a largely unnoticed ethical time bomb.  If one applies the ethical principle of justice as exemplified by the philosophy of John Rawls, which first asks, “What kind of fair opportunity does justice require?” it is not difficult to see the systems of structural discrimination and unfairness at work.

Rawls contends that fairness must be evaluated from the perspective of those who have the least. He also asserts that distribution—and for the sake of this context, healthcare distribution—is increasingly subject to properties that are far removed from the matters themselves, such as “race, IQ, linguistic accent, ethnicity, national origin, and social status.” These properties are “irrelevant” to the issue at hand, and thus are each an unacceptable basis for determining the dispersion of healthcare resources. Using Rawls’s ideological guidelines, one can see that a strong case can be made that the desolate healthcare outlooks of undocumented immigrants in the United States is unjust, objectionable, and unethical.

“If a well-off society fails to allocate sufficient funds to provide…access to a decent minimum of healthcare,” note Tom Beauchamp and James Childress in Principles of Biomedical Ethics, “its allocation system is likely to be unjust.” This minimum standard is, at least theoretically, being applied by the ACA to the American citizenry. Yet, if the ACA is implemented in its current form, undocumented immigrants will see no such minimum standard, and will be systematically blocked from achieving fair opportunity in accordance with the principle of justice.

Perhaps there is no greater indication of this looming concern than the noticeable differences that undocumented immigrants will encounter in the American healthcare system as a result of the ACA. “A great percentage of immigrants from all major groups immigrated precisely to escape difficult economic conditions in their home country,” Dr. Acosta continued. This element of history is now rapidly changing, as economically disadvantaged Americans will have access to the vast marketplace of healthcare and health insurance options, while many of the immigrants of today—due to their undocumented status—will not.

“The treatment of recent immigrants,” Dr. Acosta remarked, “differs from their counterparts in the past—due to their clandestine status—and from today’s poor—due to their lack of access to social programs.” This historical reflection speaks to the heart of the Rawlsian distress for fair opportunity: by some random accident of a “natural” or “social” lottery, undocumented immigrants must suffer a collective burden by no direct fault of their own, with scarce means of improving their situations.

Moreover, the status of undocumented immigrants in the American healthcare system has not been properly addressed in any meaningful way on the national level. Lawmakers in California recently announced a bill that would include undocumented immigrants in some state healthcare plans, but only the plans that are unattached to the ACA marketplace or any federal funding, for legal reasons. The discriminatory nature of the federal law might not discourage state lawmakers from seeking solutions, but it certainly does limit their possibilities and hinder progress on the issue. One can see that mere action at the state level is simply not enough. Federal action must resolve this deadlock, and so far, Congress has not taken action.

Until this unjust healthcare situation has been improved for these 10-12 million undocumented immigrants, the ACA cannot be viewed as the apotheosis of American healthcare reform. Whether addressed as an independent issue, or included in a far-reaching set of immigration policies, the imminent injustice resulting from the ACA’s changes to the healthcare system must be confronted before an entire group in the populace falls into a social situation that leaves them with fewer options than ever.

As Dr. Acosta explained, “American economists repeatedly acknowledge the value of immigrants to the U.S. economy, ironically because their contributions via low wages outweigh their cost, for instance, on social services for which they do not qualify, like the ACA.” The American public—so blinded by political ends must address the current healthcare situation of undocumented immigrants from an ethical standpoint of justice and fair opportunity.

Indeed, the dilemma created by the ACA for undocumented immigrants will not be solved overnight; it is an issue that must face public examination in the very near future. The question is whether the economic benefits immigrants bring to American society—or, perhaps, other motivating factors—will soon compel the American people – and, in turn, lawmakers – to address this issue in a way that takes into account the moral implications of excluding a significant segment of the American population from healthcare coverage.

Ken Ochs, FCRH Class of 2015, is a neuroscience major (concentration in cell & molecular neuroscience), theology secondary major, bioethics minor, and Student Editor of Student Voices.

Special thanks to Salvador Acosta, Ph.D., Assistant Professor of History at Fordham University, for his assistance and historical perspective. Dr. Acosta specializes in the history and sociocultural experiences of Latinos in the United States.


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