Health as a Human Right: No Migrants Need Apply

We don’t seem to understand or we’ve neglected the specter of what is beneath and pushing all of these things to the surface:  the specter of militarism and colonialism.  And all the things that Hawaiians experienced through colonialism, we have that same experience – to the point right now where one of the islands in Micronesia, in the Northern Marianas, is proposed to be a target for military bombing. Kind of reminds you a lot of Kahoʻolawe.

-Joakim “Jojo” Peter, #BeingMicronesian In Hawaii, April 6, 2019

The timing of the announcement was curious. The Supreme Court declined to hear the appeal challenging the state of Hawaii’s exclusion of migrants from the Compacts of Free Association nations from its Medicaid program on Monday, Nov. 3, 2014. By that afternoon the administration of Gov. Neil Abercrombie announced its intentions to remove patients who had been enrolled in Medicaid.

The Hawaii Department of Human Services had a plan ready for rollout. Those 18 and under and pregnant women would continue to receive Medicaid. The aged, blind, and disabled would continue to receive state-funded benefits under a Medicaid-like plan. Those 19 through 64 years of age were moved onto private insurance plans via Affordable Healthcare Act mechanisms.

Of note, Abercrombie was a lame duck by Nov. 3. He had lost in the Democratic Party primary to David Ige, who went on to defeat Republican James “Duke” Aiona and independent Mufi Hannemann the next day: Tuesday, Nov. 4, 2014.

What was the reason for the alacrity to announce the plan to remove COFA migrants from Medicaid rolls?

Abercrombie had previously noted that he had to pursue the case in federal court because of his “fiduciary responsibility” (presumably to the taxpayers of Hawaii to minimize entitlements). He had said that as long as he was governor, Micronesians would continue to be covered by Medicaid (personal communication April 8, 2014). (They were, indeed, removed from Medicaid rolls only immediately after his tenure ended.)

However, it could not have escaped his notice that denying Medicaid to indigent people (as one must be below 133% of federal poverty levels to qualify for Medicaid) would result in adverse health outcomes for them. On the face of it, this would seem to belie his reputation as a liberal.

Perhaps Abercrombie was “taking one for the team,” in the sense that he sought to fix a troublesome public policy and budgetary conundrum prior to fellow Democrat Gov. David Ige’s taking the reins. Ige thereby didn’t have to appear to be a heartless chief executive during his first days in office.

While the children of COFA migrants born in the U.S. are U.S. citizens, COFA migrants cannot vote in Hawaii. Thus, Hawaii politicians need not pay attention to Micronesians as a voting constituency.

The general populace of Hawaii had been subjected for years to political pronouncements about the “cost” of COFA migrants — and a commonly held belief is that this cost should be borne by the federal government. Such logic ignores the fact that employed COFA migrants pay both federal and state payroll taxes, and all participants in the economy pay the state general excise and use tax.

The inability of COFA migrants to vote is thus a form of taxation without representation. Their exclusion from Medicaid means that they are taxed while being barred from benefitting from the social commons.

Abercrombie’s disdain for Micronesians is evident in a recent pronouncement: “People come here, they have no job, they don’t even have to have a job, they don’t have to pay any taxes, if they get enough to get airfare they can go from the airport to Queen’s Hospital.”

The exclusion of COFA migrants from Medicaid in Hawaii had been first proposed by Republican Gov. Linda Lingle in mid-2009 in the wake of the Great Recession. During this period, the Hawaii delegation to the U.S. Congress, including then-Rep. Abercrombie, worked to reinstate COFA migrant eligibility for Medicaid at the federal level, attempting to insert such language into the Affordable Care Act.

On July 1, 2010, during the waning days of the Lingle administration, COFA migrants were placed on a severely limited program called Basic Health Hawaii. In December 2010, however, Circuit Court Judge Michael Seabright placed an injunction against Basic Health Hawaii, agreeing with the plaintiffs that they had a constitutional right to equal protection under the law.

Having defeated Republican Duke Aiona in the general election of November 2010, as Abercrombie was inaugurated as governor in December 2010, it was his prerogative to allow Judge Seabright’s decision to stand. Given Abercrombie’s liberal reputation, COFA migrants and their friends and allies were hopeful that he would do so.

The state, however, appealed to the federal Circuit Court, which decided in favor of the state’s power to exclude COFA migrants from Medicaid. The Circuit Court decision became the final word when the Supreme Court declined to hear an appeal.

The legal battle is over. The only way in which COFA migrants could participate in Medicaid now is via an act of the U.S. Congress.

Should one interpret Gov. Abercrombie’s actions, then, as his “taking one for the team,” the power elite of the state? The power elite believes in neoliberal, market solutions. That is to say, they want to minimize the public commons. They want to shrink public services such as public education or public health care.

The power elite sends its children to private schools. They would not set foot in a community health center or a county hospital. They want to pay less tax because they don’t want their tax dollars going to educate the poor or caring for the poor.

As civil rights organizer Joakim “Jojo” Peter noted a few days before his passing, “My issue has always been that if there’s a lot of this structural discrimination or structural barriers against you that starts with the government, the state government and the federal government, and it filters down to the community, and it’s all crashing in on you, you have very little recourse.”

For the power elite it matters little which party is in power as long as their interests are taken care of. As Noam Chomsky notes about national politics, “In the U.S., there is basically one party — the business party. It has two factions, called Democrats and Republicans, which are somewhat different but carry out variations on the same policies.”

The power elite prefers that their A-team, the Republicans, be in power. When the A-team makes a major mess of things, and to demonstrate the pretense that the country remains a democracy, it’s time to call in the B-team, the Democrats.

When the casinos of Wall Street go broke, it’s time for a bipartisan bailout by the taxpayers. When the numbers of uninsured in America becomes a national disgrace, the solution is to subsidize the premiums to enroll more people with private insurance companies.

Liberals talk about caring for everybody, but when it comes down to it, they take care of their corporate backers. For Hawaii, its polity dominated by the Democrats, it is expected that even the liberal wing of the Democratic Party will take care of the power elite.

Within polite (these days less so) discourse regarding migrants in the U.S. ranging from a) wall-building to b) high tech border patrolling — COFA migrants forever remain migrants. The Compacts of Free Association allow citizens of the Marshall Islands, the Federated States of Micronesia, and Palau free entry to the U.S. and the right to work without a visa, but there is no pathway to permanent residency or U.S. citizenship.

Many scientists are calling the present the Anthropocene epoch because human activity is changing the physical nature of the planet. The energy-intensive, neoliberal, “free trade” hyper-capitalism of recent decades is accelerating the pace of this change.

In the coming decades, climate change will force many more to seek higher ground. The mean elevation in the Marshall Islands is 2 meters above sea level, making it particularly susceptible to sea level rise. Historically, the human rights of the Marshallese have been run over roughshod by nuclear testing and human experimentation.

The main lagoon of Chuuk, in the Federated States of Micronesia, is severely polluted from the U.S. bombing campaign of World War II. The island of Peleliu of Palau remains densely littered with debris from the fierce World War II battle fought there. Kwajalein Atoll in the Marshall Islands remains under U.S. military jurisdiction.

Despite having assumed responsibility for the health and welfare of Micronesians after World War II, the United States failed its responsibilities to the islanders, who consequently continue to suffer from inadequate health care, limited education opportunities, and marginal economic development.

The compacts were negotiated to preserve U.S. strategic interests in the Pacific, with limited benefit to Micronesians themselves, who might not need to seek education, employment and health care here in the U.S. had the U.S. fulfilled its responsibilities. Inevitably, more people of the COFA nations will migrate to the U.S. Will Americans continue to exclude COFA migrants from access to health care?

Will we build walls or tear them down? In the present day, the denial of the human right to health is an insidious step toward the denial of other human rights. The first clause of Article 25 of the Universal Declaration of Human Rights, adopted by the United Nations in 1948, reads: “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 …”

Meanwhile, exclusion from Medicaid, by making it clear to all concerned that COFA migrants are “non-qualified aliens” (per the language of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996), the COFA migrant is redefined as “the other,” despite their legal right to live in Hawaii.

In this way, the erosion of the human right to health underscores the fact that COFA migrants are not quite equal to Americans and can be treated differently by the state. Conversely, the fact that COFA migrants are not American citizens justifies the denial of the human right to health.

We would do well to keep in mind the words of Jojo Peter, who spoke at the Honolulu Civil Beat’s recent #BeingMicronesian In Hawaii event:

The most basic core of all of this is we have to respect each other’s human rights and the right to access, like everybody else. And I think if we can just commit to being open-minded, to support the human rights regardless of national origin and the other protected classes, I think that’s a very good start.

Seiji Yamada is a family physician practicing and teaching in Hawaii.

Gregory G. Maskarinec is a cultural anthropologist who directs the University of Hawaii John A. Burns School of Medicine’s Office of Global Health and International Medicine.

A version of this essay originally appeared in the Honolulu Civil Beat.


Seiji Yamada is a family physician practicing and teaching in Hawai‘i. Gregory Maskarinec is an anthropologist.