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Undocumented Immigrants: Lack of Equal Protection and Its Impact on Public Health Akiesha R. Gilcrist
a
a
University of Pittsburgh School of Law Published online: 13 Dec 2013.
To cite this article: Akiesha R. Gilcrist (2013) Undocumented Immigrants: Lack of Equal Protection and Its Impact on Public Health, Journal of Legal Medicine, 34:4, 403-412, DOI: 10.1080/01947648.2013.859958 To link to this article: http://dx.doi.org/10.1080/01947648.2013.859958
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions
Journal of Legal Medicine, 34:403–412 C 2013 American College of Legal Medicine Copyright 0194-7648 print / 1521-057X online DOI: 10.1080/01947648.2013.859958
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UNDOCUMENTED IMMIGRANTS: LACK OF EQUAL PROTECTION AND ITS IMPACT ON PUBLIC HEALTH Akiesha R. Gilcrist*
INTRODUCTION From the very beginning, America has had a complicated relationship with immigrants.1 To those seeking to enter the country, America is perceived as “a shining beacon of hope, a promised land, accepting and recruiting new residents to build the nation and its economy.”2 In contrast, others within the country’s borders have “doubted the capacity of America’s culture and economy to absorb newcomers.”3 Indeed, the United States has grappled for centuries with immigration and its impact on public health.4 For example, in 1875, “following a Supreme Court ruling that state laws regulating immigration were unconstitutional, Congress enacted protectionist laws aimed at excluding people with diseases.”5 “Even today, under section 212 of the Immigration and Nationality Act,[6] the Attorney General [is prohibited from] admitting aliens if they are afflicted with certain mental or physical conditions, any “dangerous contagious disease,” or any defect, disease, or disability that may affect their ability to earn a living.”7 The controversy surrounding public health and immigration, however, does not solely rest with the federal government’s regulation of lawfully present immigrants.8 Rather, the public * Law
student at the University of Pittsburgh School of Law. This article received second place in the 2013 American College of Legal Medicine’s Student Writing Competition. Direct correspondence via email to [email protected]. 1 Kathryne J. Couch, This Land Is Our Land, a Local Solution to a Local Problem: State Regulation of Immigration Through Business Licensing, 21 GEO. IMMIGR. L.J. 641, 642 (2007). 2 Id. 3 Id. 4 Wayne Lutton, Immigration and Public Health, in 14 THE SOCIAL CONTRACT 12, 12 (Fall 2003), http:// www.thesocialcontract.com/pdf/fourteen-one/xiv-1-12.pdf. 5 Couch, supra note 1, at 643. [6] 8 U.S.C. § 1182(a)(1)(A)(i) (2010). 7 Lutton, supra note 4, at 12. 8 Id.
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health crisis centers on the hundreds of thousands of people entering the United States uninspected and unscreened every year.9 As a result, diseases once practically eradicated are re-emerging, and new diseases, prevalent only in third-world countries, are appearing within the nation’s borders.10 Today, “the number of foreign-born individuals living in the United States is estimated to be approximately 35 million, with 1 million new immigrants arriving each year.”11 Notably, more than 10 million of those immigrants are undocumented and have not undergone health screenings, which are mandated for immigrants entering the country legally.12 Once a matter primarily affecting just a half-dozen border states, the potential impact on the public health and welfare of undocumented immigrants who are denied access to basic healthcare affects virtually the entire country.13 Despite the growing fears of newly emerging health dangers, “undocumented immigrants constitute one of the most vulnerable classes in America.”14 “On average, they have less money than other immigrants and Americans, live in substandard conditions, enter the country through means that pose harm to their health, have jobs that are hazardous to their health, have no health insurance, and have virtually no political clout.”15 The total combined effect of the foregoing “is poor health with little, if any, financial means with which to obtain treatment.”16 To make matters worse, the 1996 welfare reform laws essentially force undocumented immigrants to “wait until their medical conditions turn into emergencies” before hospitals may treat them.17 In addition, states are required to disclose the identity of undocumented immigrants in certain circumstances.18 Statutory mandates, such as these, not only deter undocumented immigrants from seeking necessary medical attention, thereby exposing themselves, their families, and the public at large to potentially dangerous health conditions, but they also deny undocumented immigrants their equal protection rights by placing restrictions on their access to basic medical care. Section I of this paper provides an overview of immigration law with regard to welfare reform laws and the impact that such laws have on undocumented immigrants. Section II examines prior case law, illustrating that the 9
Id. Id. 11 Couch, supra note 1, at 641. 12 Id. 13 Id. 14 Elizabeth R. Chesler, Note, Denying Undocumented Immigrants Access to Medicaid: A Denial of Their Equal Protection Rights?, 17 B.U. PUB. INT. L.J. 255, 256 (2008). 15 Id. at 256-57. 16 Id. at 257. 17 Id. Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C.L. REV. 1557, 1585 (2008). 18 Id. at 1586. 10
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constitutionality of the federal statute eliminating federally funded preventive healthcare for undocumented immigrants, with the exception of emergency services and treatment for communicable diseases, is an issue of first impression. Section III provides an equal protection analysis, concluding that the federal statute removing federal funding of preventive healthcare for undocumented immigrants should be reviewed under a heightened scrutiny standard. This paper concludes that courts should utilize a heightened level of scrutiny when evaluating a regulation that denies undocumented immigrants necessary benefits and should take into consideration the harm done to the general public by refusing medical care to individuals who need it the most. I. OVERVIEW OF IMMIGRATION LAW AND WELFARE, AND ITS IMPACT ON UNDOCUMENTED IMMIGRANTS A. Immigration Law and Welfare To deter legal immigrants from relying on social services, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which permits states to deny a range of public benefits to noncitizens, including permanent residents.19 The Act’s goal was to enforce the requirements that admitted aliens have sufficient financial resources to prevent such aliens from becoming public charges.20 To meet this goal, the “PRWORA allow[ed] states to decide independently whether to bestow benefits on lawfully admitted noncitizens or undocumented immigrants” with the requirement that states “report to the federal immigration agency all individuals known to be undocumented.”21 While the PRWORA targeted legal immigrants, it eliminated all federally funded preventive healthcare for undocumented immigrants, leaving only emergency services and treatment for communicable diseases.22 “Furthermore, the PRWORA effectively removed a state’s discretion to provide Medicaid coverage to undocumented immigrants and mandated that states classify such immigrants as ineligible.”23 B. Impact on Undocumented Immigrants “The PRWORA severely restricts immigrants’ access to healthcare by narrowly” defining the categories of immigrants eligible to receive public benefits.24 “Before the PRWORA was passed, publicly funded hospitals and 19
Id. at 1585. Id. Id. at 1586. 22 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105. 23 Id.; Chesler, supra note 14, at 259. 24 Chesler, supra note 14, at 259. 20
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practitioners customarily provided necessary health services regardless of immigration status.”25 According to one scholar’s broad interpretation of the Supreme Court’s holding in Plyler v. Doe, the Court’s decision was interpreted by states and healthcare providers, alike, to mandate public benefits, such as healthcare, be provided to immigrants, regardless of their status.26 Because the PRWORA specifically prohibited providing non-emergency health services with Medicaid funds, these customs and assumptions, however, naturally changed.27 In addition, under the PRWORA, if states wish to provide any other health services beyond the stipulated emergency medical aid, their individual legislatures must pass laws affirmatively allowing such treatment.28 This specific change affected undocumented immigrant children significantly because, prior to the passage of the PRWORA, healthcare for those children had been provided by state-funded non-emergency care in several states.29 The most significant impact of the PRWORA, for both undocumented immigrants and American citizens alike, is that uninsured undocumented immigrants are, with very few exceptions, denied access to healthcare unless they are able to manage the medical expenses with financial assistance.30 Not only does this denial of necessary medical care raise equal protection concerns within the constitutional realm, but it is also a cause for significant alarm in the area of public health.31 Absent the ability to provide access to necessary medical care to a large, rapidly growing population known for carrying certain types of infectious diseases,32 the general public’s chances of exposure increases dramatically. One scholar even cited a statement, issued by an official at the United States Department of Health and Human Services, warning: “Along the border we have a prevalence of diseases that we shouldn’t be seeing much of in modern Western society. We have higher rates of such things as malaria, tuberculosis, measles, rubella, rabies, and pertussis.”33 It was also noted that physicians trained in locations where such diseases are not prevalent have difficulty recognizing outbreaks in patients.34 II. LACK OF CONTROLLING CASE LAW: MATHEWS AND PLYLER The issue of whether denying medical benefits to undocumented immigrants violates equal protection rights has never actually been addressed in a 25
Id. Id. Id. 28 Id. at 260. 29 Id. 30 Id. 31 Lutton, supra note 4, at 14. 32 Id. 33 Id. at 12. 34 Id. 26 27
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court of law; however, two Supreme Court cases, Mathews v. Diaz and Plyler v. Doe, provide a useful framework to analyze undocumented immigrants’ rights with regard to necessary medical care.35
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A. Mathews v. Diaz: Lawfully Present Versus Undocumented Immigrants In Mathews v. Diaz, the Supreme Court considered the constitutionality of federal legislation that denied public benefits to immigrants lawfully admitted to the United States for fewer than five years.36 The plaintiffs, all lawfully admitted to the United States for fewer than five years, “argued that the five-year residency requirement for aliens to be eligible for Medicare violated their due process rights.”37 Instead of examining the permissibility of discriminating between citizens and aliens, the Court’s analysis turned to the question of “whether the statutory discrimination within the class of aliens—allowing benefits to some aliens but not to others—is permissible.”38 As a result, “[t]he Supreme Court rejected the plaintiffs’ claims, reasoning that because Congress enjoys ‘plenary power over immigration and naturalization’, the judiciary should avoid involving itself in matters [that] may implicate relations with foreign powers.”39 A key distinction between the regulation at issue in Mathews and the regulation at issue here is that Mathews deals with distinctions among legal immigrants.40 Here, the focal point is regulation aimed at and affecting undocumented immigrants.41 A few years later, “[w]hen the Supreme Court analyzed the equal protection rights of undocumented immigrants in Plyler v. Doe, the Court made it clear that undocumented immigrants are not a ‘class’ of aliens.”42 Thus, the holding in Mathews controls only with respect to classifications of legal immigrants. Nevertheless, the Supreme Court in Mathews made clear that “Congress enjoys plenary ‘power over immigration and naturalization”’ and thus “receives substantial deference when it passes immigration legislation.”43
35
Chesler, supra note 14, at 261. 426 U.S. 67, 69 (1976). Chesler supra note 14, at 261. 38 Id. (citing Mathews, 426 U.S. at 80). 39 Id. (citing Mathews, 426 U.S. at 79-81). 40 Id. 41 Id. at 262 (citing Plyler v. Doe, 457 U.S. 202 (1982)). 42 Id. at 261-62. 43 Id. (quoting Mathews, 426 U.S. at 79-80). 36 37
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B. Plyler v. Doe: Supreme Court Protects Rights of Undocumented Immigrants In Plyler v. Doe, the Supreme Court struck down a Texas statute that withheld from local school districts state funds for the education of undocumented children and that authorized these schools to deny enrollment to such children as “a violat[ion] of the Fourteenth Amendment’s Equal Protection Clause.”44 The Court ultimately found that, where states limit the rights afforded to people, specifically children, based on their status as undocumented aliens, this limitation must be examined under a heightened form of scrutiny, rather than the rational basis test, to determine whether it furthers a substantial goal of the state.45 While holding that undocumented immigrant children were not a “suspect class” and that education is not a fundamental right, the Supreme Court, nevertheless, struck down the Texas statute because the “statute imposed a lifetime hardship on a discrete class of children not accountable for their disabling status.”46 While the Supreme Court’s holding was narrow,47 this case illustrates the Supreme Court’s ability and willingness to use the Equal Protection Clause to protect the rights of undocumented immigrants in the area of public benefits.48 As a result, the exact level of scrutiny the Supreme Court would use when confronted with a constitutional challenge to regulations that deny undocumented immigrants’ access to basic health benefits is unclear.49 Finally, a key distinction between Mathews and Plyler is that Congress enacted the regulation in the former case, while the regulation in the latter case was enacted at the state level.50 III. EQUAL PROTECTION ANALYSIS “The Fourteenth Amendment provides that ‘[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”’51 “Aliens, even aliens whose presence . . . is unlawful, have long been recognized as ‘persons’ guaranteed due process of law.”52 The original intent of the Equal Protection Clause was to abolish the use of caste-based and invidious
44
Id. at 262. Id.; see generally Plyler v. Doe, 457 U.S. 202, 224 (1982). Plyler, 457 U.S. at 223. 47 Chesler, supra note 14, at 262. 48 Id. 49 Id. 50 Id. at 262-63. 51 Plyler, 457 U.S. at 210. 52 Id. 45 46
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class-based discrimination.53 With regard to undocumented immigrants, the Supreme Court has “clearly held that the Fifth Amendment protects [those immigrants] from invidious discrimination by the Federal Government.”54 In order to prevail on an equal protection claim upon being denied medical care based on immigrant status, an undocumented immigrant will have the burden of proving that the regulation’s classification, which differentiates such immigrants under the law, “is not sufficiently justified by its purpose.”55 The level of scrutiny that the court adopts in its analysis can easily determine the likely outcome of a case. For example, under the lowest level of scrutiny, rational basis review, an undocumented immigrant would have the burden of proving that the government action in denying undocumented immigrants access to medical care is not rationally related to a legitimate governmental purpose. Under this level of scrutiny, it is highly unlikely that the courts would accept such a claim. Thus, it is crucial for undocumented immigrants to convince the court that regulations affecting undocumented immigrants deserve heightened scrutiny, especially when an important right, such as access to medical care, is denied.56 A. Healthcare Is an “Important Right” and Should Prompt Heightened Scrutiny “Rational basis is the lowest level of scrutiny that a court applies when engaging in judicial review.” “The higher levels of scrutiny include intermediate scrutiny and strict scrutiny.”57 “Rational basis is the default level of review: however, rational basis does not usually apply in situations where a suspect or quasi-suspect classification is involved, or where a fundamental right is implicated.”58 Intermediate scrutiny is applied for quasi-suspect classifications (i.e., gender), and strict scrutiny is applied for suspect classifications, such as race, alienage, and national origin. “Courts may also use heightened scrutiny when the interest at stake is not fundamental, but is, nonetheless, ‘important’.”59 This form of analysis was used in Plyler, where the Court “found education to be less than a fundamental right but more than [a] mere[] governmental benefit.”60 The “Court expressly relied on the public’s belief that providing a free[,] basic education is an important responsibility of governments, and 53
Id. at 213. Id. at 210; see also Mathews, 426 U.S. at 77. Chesler, supra note 14, at 264. 56 Id. at 265 57 GLENN M. WONG, E-STUDY GUIDE FOR: ESSENTIALS OF SPORTS LAW (2013). 58 Rational Basis Review, http://www.babylon.com/definition/rational%20basis%20review/ (last visited Aug. 30, 2013). 59 Chesler, supra note 14, at 274. 60 Plyler, 457 U.S. at 202; Chesler, supra note 14, at 275. 54
55
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the same may be said today about healthcare,”61 especially as diseases crossing the United States’ open border become more prevalent.62 In addition, the Court in Memorial Hospital v. Maricopa County struck down a county’s enforcement of a residency requirement for healthcare because such a requirement impinged upon the plaintiff’s right of interstate travel and because the state’s justifications for the requirement did not constitute compelling a state interest.63 In dicta, the Supreme Court recognized the importance of access to medical care and also noted that, “while there is no right to [free medical care], once free medical care is provided to [certain] groups, classifications denying [free care] to other groups based on irrelevant criteria should be treated with suspicion.”64 Both cases illustrate that, while access to healthcare and education are not fundamental rights, they are “sufficiently important to merit heightened scrutiny” because “deprivation of these services places significant burdens on both the affected individuals and society at large.”65 Following the same rationale, a Court should determine that PRWORA’s denial of necessary medical care to undocumented immigrants places a significant public health burden on both undocumented immigrants and society at large. B. Government’s Interest in Denying Medical Care to Undocumented Immigrants Fails Heightened Scrutiny Congress has specifically stated that it is the “immigration policy of the United States that the availability of public benefits not constitute an incentive for immigration to the United States.”66 Thus, it is a legitimate “government interest to remove the incentive for illegal immigration provided by the availability of public benefits.”67 If the regulation were scrutinized under a heightened form of scrutiny, however, a legitimate interest, alone, would not be sufficient. Rather, the means used to achieve the stated purpose of the regulation would also have to be substantially related to achieve that purpose. For example, “the judiciary must ask whether, outside of pure speculation and theory, there is a reason to believe the availability of medical benefits induces undocumented immigrants to come to the United States.”68 Absent sufficient evidence to prove this theory, mere speculation will not suffice. In the present situation, it may very well be true that the availability of public benefits is a contributing factor. Nevertheless, studies actually have found that 61
Chesler, supra note 14, at 279-80. Lutton, supra note 4, at 14. 63 Chesler, supra note 14, at 278 (citing Memorial Hosp. v. Maricopa County, 415 U.S. 250, 269 (1974)). 64 Id. 65 Id. at 275. 66 Martinez v. Regents of the Univ. of Cal., 241 P.3d 855, 864 (Cal. 2010) (citing 8 U.S.C. § 1601(2)(B)). 67 Id. (quoting 8 U.S.C. § 1601 (1996)). 68 Chesler, supra note 14, at 281-82. 62
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undocumented immigrants are most greatly influenced by the availability of employment rather than medical benefits.69 In addition, “the judiciary must ascertain whether a restriction in public benefits is an appropriately tailored means of deterring illegal immigration.”70 Thus, the passage of regulations seeking to withhold medical care as a means of deterring immigrants from unlawfully entering the country must be narrowly tailored to achieve its purpose. The government must demonstrate which benefits actually provide the incentives and regulate those specific benefits without unnecessarily denying undocumented immigrants’ basic healthcare.71 Given the numerous studies concluding that opportunities for employment, rather than medical care, induce immigrants to enter the United States,72 regulations denying medical care to undocumented aliens would not achieve the stated purpose of deterring illegal immigration.73 IV. RECOMMENDATIONS A number of lessons may be drawn from regulations that deny undocumented immigrants necessary medical care. The impact on the health of society at large is most important. Because undocumented immigrants, as opposed to those lawfully present, are not subjected to medical screening upon entrance into the United States, the general public is at risk of being subjected to a number of potentially contagious diseases once thought to be extinct within the United States’ borders.74 Delayed medical care, or none at all, could exponentially increase the number of individuals exposed to such diseases.75 To adequately tackle this issue, the following recommendations should be considered. First, the ability to access necessary healthcare by undocumented immigrants should be acknowledged as vital to the overall public health of the United States. Thus, when determining whether proposed regulations denying benefits within this realm violate equal protection rights, a heightened form of scrutiny should be utilized, as required by the Supreme Court in Plyler. Next, regulations with the purpose of denying undocumented immigrants necessary medical benefits, such as the PRWORA, should be 69
Kathryn Pitkin Derose et al., Immigrants and Health Care: Sources of Vulnerability (2007), 26 HEALTH AFFAIRS: AT THE INTERSECTION OF HEALTH, HEALTH CARE AND POLICY 1258-65 (2007). 70 Chesler, supra note 14, at 282. 71 Id. at 283. 72 Derose, supra note 65. 73 Chesler, supra note 14, at 283. 74 See Lutton, supra note 4. 75 City News Service, Doctor Group Says Undocumented Immigrants Should Have Access to Health Care, KPBS (Apr. 7, 2011, 3:17 PM), http://www.kpbs.org/news/2011/apr/07/doctor-group-saysundocumented-immigrants-should-h/.
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revised, as those regulations would not withstand such heightened scrutiny. While it may be argued that these regulations were enacted for the legitimate purpose of deterring illegal immigration,76 the government cannot demonstrate that such laws are narrowly tailored given studies that suggest the ability to obtain jobs, rather than medical care, is the driving force behind illegal immigration.77 Thus, the government should indicate which benefits actually provide the incentives and regulate those specific benefits without unnecessarily denying undocumented immigrants the healthcare they need.78 Finally, given that the Fourteenth Amendment broadly mandates equal protection under the laws, policies that do not foster discrimination based on immigrant status for healthcare purposes should be adopted.79
76
See Martinez, 241 P.3d at 864. See Derose, supra note 69, at 8. 78 See generally id. 79 City News Service, supra note 75. 77
Journal of Legal Medicine Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/ulgm20
Undocumented Immigrants: Lack of Equal Protection and Its Impact on Public Health Akiesha R. Gilcrist
a
a
University of Pittsburgh School of Law Published online: 13 Dec 2013.
To cite this article: Akiesha R. Gilcrist (2013) Undocumented Immigrants: Lack of Equal Protection and Its Impact on Public Health, Journal of Legal Medicine, 34:4, 403-412, DOI: 10.1080/01947648.2013.859958 To link to this article: http://dx.doi.org/10.1080/01947648.2013.859958
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions
Journal of Legal Medicine, 34:403–412 C 2013 American College of Legal Medicine Copyright 0194-7648 print / 1521-057X online DOI: 10.1080/01947648.2013.859958
Downloaded by [Michigan State University] at 04:06 10 February 2015
UNDOCUMENTED IMMIGRANTS: LACK OF EQUAL PROTECTION AND ITS IMPACT ON PUBLIC HEALTH Akiesha R. Gilcrist*
INTRODUCTION From the very beginning, America has had a complicated relationship with immigrants.1 To those seeking to enter the country, America is perceived as “a shining beacon of hope, a promised land, accepting and recruiting new residents to build the nation and its economy.”2 In contrast, others within the country’s borders have “doubted the capacity of America’s culture and economy to absorb newcomers.”3 Indeed, the United States has grappled for centuries with immigration and its impact on public health.4 For example, in 1875, “following a Supreme Court ruling that state laws regulating immigration were unconstitutional, Congress enacted protectionist laws aimed at excluding people with diseases.”5 “Even today, under section 212 of the Immigration and Nationality Act,[6] the Attorney General [is prohibited from] admitting aliens if they are afflicted with certain mental or physical conditions, any “dangerous contagious disease,” or any defect, disease, or disability that may affect their ability to earn a living.”7 The controversy surrounding public health and immigration, however, does not solely rest with the federal government’s regulation of lawfully present immigrants.8 Rather, the public * Law
student at the University of Pittsburgh School of Law. This article received second place in the 2013 American College of Legal Medicine’s Student Writing Competition. Direct correspondence via email to [email protected]. 1 Kathryne J. Couch, This Land Is Our Land, a Local Solution to a Local Problem: State Regulation of Immigration Through Business Licensing, 21 GEO. IMMIGR. L.J. 641, 642 (2007). 2 Id. 3 Id. 4 Wayne Lutton, Immigration and Public Health, in 14 THE SOCIAL CONTRACT 12, 12 (Fall 2003), http:// www.thesocialcontract.com/pdf/fourteen-one/xiv-1-12.pdf. 5 Couch, supra note 1, at 643. [6] 8 U.S.C. § 1182(a)(1)(A)(i) (2010). 7 Lutton, supra note 4, at 12. 8 Id.
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health crisis centers on the hundreds of thousands of people entering the United States uninspected and unscreened every year.9 As a result, diseases once practically eradicated are re-emerging, and new diseases, prevalent only in third-world countries, are appearing within the nation’s borders.10 Today, “the number of foreign-born individuals living in the United States is estimated to be approximately 35 million, with 1 million new immigrants arriving each year.”11 Notably, more than 10 million of those immigrants are undocumented and have not undergone health screenings, which are mandated for immigrants entering the country legally.12 Once a matter primarily affecting just a half-dozen border states, the potential impact on the public health and welfare of undocumented immigrants who are denied access to basic healthcare affects virtually the entire country.13 Despite the growing fears of newly emerging health dangers, “undocumented immigrants constitute one of the most vulnerable classes in America.”14 “On average, they have less money than other immigrants and Americans, live in substandard conditions, enter the country through means that pose harm to their health, have jobs that are hazardous to their health, have no health insurance, and have virtually no political clout.”15 The total combined effect of the foregoing “is poor health with little, if any, financial means with which to obtain treatment.”16 To make matters worse, the 1996 welfare reform laws essentially force undocumented immigrants to “wait until their medical conditions turn into emergencies” before hospitals may treat them.17 In addition, states are required to disclose the identity of undocumented immigrants in certain circumstances.18 Statutory mandates, such as these, not only deter undocumented immigrants from seeking necessary medical attention, thereby exposing themselves, their families, and the public at large to potentially dangerous health conditions, but they also deny undocumented immigrants their equal protection rights by placing restrictions on their access to basic medical care. Section I of this paper provides an overview of immigration law with regard to welfare reform laws and the impact that such laws have on undocumented immigrants. Section II examines prior case law, illustrating that the 9
Id. Id. 11 Couch, supra note 1, at 641. 12 Id. 13 Id. 14 Elizabeth R. Chesler, Note, Denying Undocumented Immigrants Access to Medicaid: A Denial of Their Equal Protection Rights?, 17 B.U. PUB. INT. L.J. 255, 256 (2008). 15 Id. at 256-57. 16 Id. at 257. 17 Id. Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C.L. REV. 1557, 1585 (2008). 18 Id. at 1586. 10
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constitutionality of the federal statute eliminating federally funded preventive healthcare for undocumented immigrants, with the exception of emergency services and treatment for communicable diseases, is an issue of first impression. Section III provides an equal protection analysis, concluding that the federal statute removing federal funding of preventive healthcare for undocumented immigrants should be reviewed under a heightened scrutiny standard. This paper concludes that courts should utilize a heightened level of scrutiny when evaluating a regulation that denies undocumented immigrants necessary benefits and should take into consideration the harm done to the general public by refusing medical care to individuals who need it the most. I. OVERVIEW OF IMMIGRATION LAW AND WELFARE, AND ITS IMPACT ON UNDOCUMENTED IMMIGRANTS A. Immigration Law and Welfare To deter legal immigrants from relying on social services, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which permits states to deny a range of public benefits to noncitizens, including permanent residents.19 The Act’s goal was to enforce the requirements that admitted aliens have sufficient financial resources to prevent such aliens from becoming public charges.20 To meet this goal, the “PRWORA allow[ed] states to decide independently whether to bestow benefits on lawfully admitted noncitizens or undocumented immigrants” with the requirement that states “report to the federal immigration agency all individuals known to be undocumented.”21 While the PRWORA targeted legal immigrants, it eliminated all federally funded preventive healthcare for undocumented immigrants, leaving only emergency services and treatment for communicable diseases.22 “Furthermore, the PRWORA effectively removed a state’s discretion to provide Medicaid coverage to undocumented immigrants and mandated that states classify such immigrants as ineligible.”23 B. Impact on Undocumented Immigrants “The PRWORA severely restricts immigrants’ access to healthcare by narrowly” defining the categories of immigrants eligible to receive public benefits.24 “Before the PRWORA was passed, publicly funded hospitals and 19
Id. at 1585. Id. Id. at 1586. 22 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105. 23 Id.; Chesler, supra note 14, at 259. 24 Chesler, supra note 14, at 259. 20
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practitioners customarily provided necessary health services regardless of immigration status.”25 According to one scholar’s broad interpretation of the Supreme Court’s holding in Plyler v. Doe, the Court’s decision was interpreted by states and healthcare providers, alike, to mandate public benefits, such as healthcare, be provided to immigrants, regardless of their status.26 Because the PRWORA specifically prohibited providing non-emergency health services with Medicaid funds, these customs and assumptions, however, naturally changed.27 In addition, under the PRWORA, if states wish to provide any other health services beyond the stipulated emergency medical aid, their individual legislatures must pass laws affirmatively allowing such treatment.28 This specific change affected undocumented immigrant children significantly because, prior to the passage of the PRWORA, healthcare for those children had been provided by state-funded non-emergency care in several states.29 The most significant impact of the PRWORA, for both undocumented immigrants and American citizens alike, is that uninsured undocumented immigrants are, with very few exceptions, denied access to healthcare unless they are able to manage the medical expenses with financial assistance.30 Not only does this denial of necessary medical care raise equal protection concerns within the constitutional realm, but it is also a cause for significant alarm in the area of public health.31 Absent the ability to provide access to necessary medical care to a large, rapidly growing population known for carrying certain types of infectious diseases,32 the general public’s chances of exposure increases dramatically. One scholar even cited a statement, issued by an official at the United States Department of Health and Human Services, warning: “Along the border we have a prevalence of diseases that we shouldn’t be seeing much of in modern Western society. We have higher rates of such things as malaria, tuberculosis, measles, rubella, rabies, and pertussis.”33 It was also noted that physicians trained in locations where such diseases are not prevalent have difficulty recognizing outbreaks in patients.34 II. LACK OF CONTROLLING CASE LAW: MATHEWS AND PLYLER The issue of whether denying medical benefits to undocumented immigrants violates equal protection rights has never actually been addressed in a 25
Id. Id. Id. 28 Id. at 260. 29 Id. 30 Id. 31 Lutton, supra note 4, at 14. 32 Id. 33 Id. at 12. 34 Id. 26 27
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court of law; however, two Supreme Court cases, Mathews v. Diaz and Plyler v. Doe, provide a useful framework to analyze undocumented immigrants’ rights with regard to necessary medical care.35
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A. Mathews v. Diaz: Lawfully Present Versus Undocumented Immigrants In Mathews v. Diaz, the Supreme Court considered the constitutionality of federal legislation that denied public benefits to immigrants lawfully admitted to the United States for fewer than five years.36 The plaintiffs, all lawfully admitted to the United States for fewer than five years, “argued that the five-year residency requirement for aliens to be eligible for Medicare violated their due process rights.”37 Instead of examining the permissibility of discriminating between citizens and aliens, the Court’s analysis turned to the question of “whether the statutory discrimination within the class of aliens—allowing benefits to some aliens but not to others—is permissible.”38 As a result, “[t]he Supreme Court rejected the plaintiffs’ claims, reasoning that because Congress enjoys ‘plenary power over immigration and naturalization’, the judiciary should avoid involving itself in matters [that] may implicate relations with foreign powers.”39 A key distinction between the regulation at issue in Mathews and the regulation at issue here is that Mathews deals with distinctions among legal immigrants.40 Here, the focal point is regulation aimed at and affecting undocumented immigrants.41 A few years later, “[w]hen the Supreme Court analyzed the equal protection rights of undocumented immigrants in Plyler v. Doe, the Court made it clear that undocumented immigrants are not a ‘class’ of aliens.”42 Thus, the holding in Mathews controls only with respect to classifications of legal immigrants. Nevertheless, the Supreme Court in Mathews made clear that “Congress enjoys plenary ‘power over immigration and naturalization”’ and thus “receives substantial deference when it passes immigration legislation.”43
35
Chesler, supra note 14, at 261. 426 U.S. 67, 69 (1976). Chesler supra note 14, at 261. 38 Id. (citing Mathews, 426 U.S. at 80). 39 Id. (citing Mathews, 426 U.S. at 79-81). 40 Id. 41 Id. at 262 (citing Plyler v. Doe, 457 U.S. 202 (1982)). 42 Id. at 261-62. 43 Id. (quoting Mathews, 426 U.S. at 79-80). 36 37
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B. Plyler v. Doe: Supreme Court Protects Rights of Undocumented Immigrants In Plyler v. Doe, the Supreme Court struck down a Texas statute that withheld from local school districts state funds for the education of undocumented children and that authorized these schools to deny enrollment to such children as “a violat[ion] of the Fourteenth Amendment’s Equal Protection Clause.”44 The Court ultimately found that, where states limit the rights afforded to people, specifically children, based on their status as undocumented aliens, this limitation must be examined under a heightened form of scrutiny, rather than the rational basis test, to determine whether it furthers a substantial goal of the state.45 While holding that undocumented immigrant children were not a “suspect class” and that education is not a fundamental right, the Supreme Court, nevertheless, struck down the Texas statute because the “statute imposed a lifetime hardship on a discrete class of children not accountable for their disabling status.”46 While the Supreme Court’s holding was narrow,47 this case illustrates the Supreme Court’s ability and willingness to use the Equal Protection Clause to protect the rights of undocumented immigrants in the area of public benefits.48 As a result, the exact level of scrutiny the Supreme Court would use when confronted with a constitutional challenge to regulations that deny undocumented immigrants’ access to basic health benefits is unclear.49 Finally, a key distinction between Mathews and Plyler is that Congress enacted the regulation in the former case, while the regulation in the latter case was enacted at the state level.50 III. EQUAL PROTECTION ANALYSIS “The Fourteenth Amendment provides that ‘[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”’51 “Aliens, even aliens whose presence . . . is unlawful, have long been recognized as ‘persons’ guaranteed due process of law.”52 The original intent of the Equal Protection Clause was to abolish the use of caste-based and invidious
44
Id. at 262. Id.; see generally Plyler v. Doe, 457 U.S. 202, 224 (1982). Plyler, 457 U.S. at 223. 47 Chesler, supra note 14, at 262. 48 Id. 49 Id. 50 Id. at 262-63. 51 Plyler, 457 U.S. at 210. 52 Id. 45 46
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class-based discrimination.53 With regard to undocumented immigrants, the Supreme Court has “clearly held that the Fifth Amendment protects [those immigrants] from invidious discrimination by the Federal Government.”54 In order to prevail on an equal protection claim upon being denied medical care based on immigrant status, an undocumented immigrant will have the burden of proving that the regulation’s classification, which differentiates such immigrants under the law, “is not sufficiently justified by its purpose.”55 The level of scrutiny that the court adopts in its analysis can easily determine the likely outcome of a case. For example, under the lowest level of scrutiny, rational basis review, an undocumented immigrant would have the burden of proving that the government action in denying undocumented immigrants access to medical care is not rationally related to a legitimate governmental purpose. Under this level of scrutiny, it is highly unlikely that the courts would accept such a claim. Thus, it is crucial for undocumented immigrants to convince the court that regulations affecting undocumented immigrants deserve heightened scrutiny, especially when an important right, such as access to medical care, is denied.56 A. Healthcare Is an “Important Right” and Should Prompt Heightened Scrutiny “Rational basis is the lowest level of scrutiny that a court applies when engaging in judicial review.” “The higher levels of scrutiny include intermediate scrutiny and strict scrutiny.”57 “Rational basis is the default level of review: however, rational basis does not usually apply in situations where a suspect or quasi-suspect classification is involved, or where a fundamental right is implicated.”58 Intermediate scrutiny is applied for quasi-suspect classifications (i.e., gender), and strict scrutiny is applied for suspect classifications, such as race, alienage, and national origin. “Courts may also use heightened scrutiny when the interest at stake is not fundamental, but is, nonetheless, ‘important’.”59 This form of analysis was used in Plyler, where the Court “found education to be less than a fundamental right but more than [a] mere[] governmental benefit.”60 The “Court expressly relied on the public’s belief that providing a free[,] basic education is an important responsibility of governments, and 53
Id. at 213. Id. at 210; see also Mathews, 426 U.S. at 77. Chesler, supra note 14, at 264. 56 Id. at 265 57 GLENN M. WONG, E-STUDY GUIDE FOR: ESSENTIALS OF SPORTS LAW (2013). 58 Rational Basis Review, http://www.babylon.com/definition/rational%20basis%20review/ (last visited Aug. 30, 2013). 59 Chesler, supra note 14, at 274. 60 Plyler, 457 U.S. at 202; Chesler, supra note 14, at 275. 54
55
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the same may be said today about healthcare,”61 especially as diseases crossing the United States’ open border become more prevalent.62 In addition, the Court in Memorial Hospital v. Maricopa County struck down a county’s enforcement of a residency requirement for healthcare because such a requirement impinged upon the plaintiff’s right of interstate travel and because the state’s justifications for the requirement did not constitute compelling a state interest.63 In dicta, the Supreme Court recognized the importance of access to medical care and also noted that, “while there is no right to [free medical care], once free medical care is provided to [certain] groups, classifications denying [free care] to other groups based on irrelevant criteria should be treated with suspicion.”64 Both cases illustrate that, while access to healthcare and education are not fundamental rights, they are “sufficiently important to merit heightened scrutiny” because “deprivation of these services places significant burdens on both the affected individuals and society at large.”65 Following the same rationale, a Court should determine that PRWORA’s denial of necessary medical care to undocumented immigrants places a significant public health burden on both undocumented immigrants and society at large. B. Government’s Interest in Denying Medical Care to Undocumented Immigrants Fails Heightened Scrutiny Congress has specifically stated that it is the “immigration policy of the United States that the availability of public benefits not constitute an incentive for immigration to the United States.”66 Thus, it is a legitimate “government interest to remove the incentive for illegal immigration provided by the availability of public benefits.”67 If the regulation were scrutinized under a heightened form of scrutiny, however, a legitimate interest, alone, would not be sufficient. Rather, the means used to achieve the stated purpose of the regulation would also have to be substantially related to achieve that purpose. For example, “the judiciary must ask whether, outside of pure speculation and theory, there is a reason to believe the availability of medical benefits induces undocumented immigrants to come to the United States.”68 Absent sufficient evidence to prove this theory, mere speculation will not suffice. In the present situation, it may very well be true that the availability of public benefits is a contributing factor. Nevertheless, studies actually have found that 61
Chesler, supra note 14, at 279-80. Lutton, supra note 4, at 14. 63 Chesler, supra note 14, at 278 (citing Memorial Hosp. v. Maricopa County, 415 U.S. 250, 269 (1974)). 64 Id. 65 Id. at 275. 66 Martinez v. Regents of the Univ. of Cal., 241 P.3d 855, 864 (Cal. 2010) (citing 8 U.S.C. § 1601(2)(B)). 67 Id. (quoting 8 U.S.C. § 1601 (1996)). 68 Chesler, supra note 14, at 281-82. 62
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undocumented immigrants are most greatly influenced by the availability of employment rather than medical benefits.69 In addition, “the judiciary must ascertain whether a restriction in public benefits is an appropriately tailored means of deterring illegal immigration.”70 Thus, the passage of regulations seeking to withhold medical care as a means of deterring immigrants from unlawfully entering the country must be narrowly tailored to achieve its purpose. The government must demonstrate which benefits actually provide the incentives and regulate those specific benefits without unnecessarily denying undocumented immigrants’ basic healthcare.71 Given the numerous studies concluding that opportunities for employment, rather than medical care, induce immigrants to enter the United States,72 regulations denying medical care to undocumented aliens would not achieve the stated purpose of deterring illegal immigration.73 IV. RECOMMENDATIONS A number of lessons may be drawn from regulations that deny undocumented immigrants necessary medical care. The impact on the health of society at large is most important. Because undocumented immigrants, as opposed to those lawfully present, are not subjected to medical screening upon entrance into the United States, the general public is at risk of being subjected to a number of potentially contagious diseases once thought to be extinct within the United States’ borders.74 Delayed medical care, or none at all, could exponentially increase the number of individuals exposed to such diseases.75 To adequately tackle this issue, the following recommendations should be considered. First, the ability to access necessary healthcare by undocumented immigrants should be acknowledged as vital to the overall public health of the United States. Thus, when determining whether proposed regulations denying benefits within this realm violate equal protection rights, a heightened form of scrutiny should be utilized, as required by the Supreme Court in Plyler. Next, regulations with the purpose of denying undocumented immigrants necessary medical benefits, such as the PRWORA, should be 69
Kathryn Pitkin Derose et al., Immigrants and Health Care: Sources of Vulnerability (2007), 26 HEALTH AFFAIRS: AT THE INTERSECTION OF HEALTH, HEALTH CARE AND POLICY 1258-65 (2007). 70 Chesler, supra note 14, at 282. 71 Id. at 283. 72 Derose, supra note 65. 73 Chesler, supra note 14, at 283. 74 See Lutton, supra note 4. 75 City News Service, Doctor Group Says Undocumented Immigrants Should Have Access to Health Care, KPBS (Apr. 7, 2011, 3:17 PM), http://www.kpbs.org/news/2011/apr/07/doctor-group-saysundocumented-immigrants-should-h/.
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revised, as those regulations would not withstand such heightened scrutiny. While it may be argued that these regulations were enacted for the legitimate purpose of deterring illegal immigration,76 the government cannot demonstrate that such laws are narrowly tailored given studies that suggest the ability to obtain jobs, rather than medical care, is the driving force behind illegal immigration.77 Thus, the government should indicate which benefits actually provide the incentives and regulate those specific benefits without unnecessarily denying undocumented immigrants the healthcare they need.78 Finally, given that the Fourteenth Amendment broadly mandates equal protection under the laws, policies that do not foster discrimination based on immigrant status for healthcare purposes should be adopted.79
76
See Martinez, 241 P.3d at 864. See Derose, supra note 69, at 8. 78 See generally id. 79 City News Service, supra note 75. 77
