October 2005: Supreme Court Jeopardizes Women's Right to Health

Jurists’ private insurance ruling especially negative for women
October 1, 2005

On June 9, 2005, a bare majority of justices of the Supreme Court (four of seven) overturned decisions of two lower provincial courts by ruling that there was a constitutional right for Quebecers to buy private insurance to obtain services already available in the public health system. While applying only to Quebec and potentially to be stayed for 18 months, this decision nevertheless opens the door for anyone in Canada with sufficient funds to try to buy their way off waiting lines by getting care in the private sector--and, by extension, to more privatized care in general.

The decision of the Supreme Court in the Chaoulli case has been welcomed by some, rightfully criticized by many, but missing in the discussion to date has been attention to its particular--and negative--direct and indirect effects on women. Poorer than men, with jobs that are more often precarious, non-unionized and part-time, and with higher rates of disability, women may disproportionately suffer from the effects of this decision, both as users of and as workers in the health care system.

Women are the major users of health services (notably because of their reproductive roles and higher rates of chronic disease), the majority of workers in the health system, and disproportionately the unpaid providers of care for others. This means that women have special interests in the expansion of Medicare, and not in its reduction or elimination.

The Court’s decision not only ignores these existing gender-based inequities, but opens the door for a system that has the potential to increase them. As such, this decision does not concord with the Canadian commitment to improving the status of women.

Women in Québec have already been paying the price of the "virage ambulatoire" (cost-reducing policies put in place in the 1990s that sought to reduce hospital care) and reorganizations in provincial health care systems. For over a decade, women--whether as paid health-care workers, users of the system, or unpaid caregivers--have been disproportionately harmed. The decrease in budgets to the CLSCs (local community health clinics) and the closing of hospital beds, for example, have shifted the responsibilities--and the costs--for necessary home care and postoperative services onto women who have been required to "volunteer" their care for others--and themselves. Similarly, fewer physicians at CLSCs, and the still incomplete changes to improve primary care access, deprive women of the holistic community-based primary care that they need.

Allowing private insurance and services, as the Supreme Court’s decision may do, makes access to care a matter of ability to pay rather than a matter of need. This would jeopardize equity and lead to further differentials in status between the rich and the (majority female) poor. With fewer financial resources, women will be precluded from this market but, worse, will face deterioration in the public system on which they count if physicians and nurses leave for higher-paying jobs in private clinics.

For health care workers, too, expansion of the private system is likely to bring risks. Whether or not they are “for profit,” private services’ employees generally face lower wages and poorer working conditions--both risks to health--with non-skilled workers such as aides, cleaners, food service providers, etc., the majority of whom are women, particularly hard hit.

Although the Supreme Court decision currently applies only to Québec, elsewhere in Canada, too, women especially have been feeling the impact of varying health care “reforms” for the past decade or so. This can be seen in the changed (for the worse) paid and unpaid work conditions and in reduced access to appropriate care. And none of these consequences will be addressed by having private insurance should other provinces use the Court decision as a way to reduce their waiting lists. To the contrary, all of these tendencies will likely be worsened by any further diminishing of the public system on which women are particularly dependent. And most agree that a turn to private insurance for essential services will quickly, even inevitably, lead to serious damage to the public delivery system, with increased administrative costs to manage two tiers and longer waiting times for essential care--for example, if physicians leave for more lucrative private practices. Sadly, the very women (and men) for whom waiting times for services have been put at the centre of this debate are likely to suffer the most from this decision.

In considering the expected impact of private insurance for health care services on access to care, it is useful to compare it to insurance for items such as automobiles. As with coverage for cars, private medical insurance will generally involve deductibles, exclusion clauses (e.g., for conditions thought to be related to individual responsibility), coverage variations based on one's capacity or willingness to pay, and premiums set on the basis of (pre-existing) risk. Each of these dimensions will necessarily limit access to services, even for those with the resources to pay for policies. And they will create limits in a much more pervasive and inequitable way than waiting lines for women because of their higher rates of chronic disease and of stress from trying to reconcile paid and unpaid work.

Yet, even if actuarial logic were to be deemed acceptable in our health care system, the analogy to automobile insurance ends completely when we realize that individual health, unlike a car, is invaluable and not a commodity. With private health insurance, a value is set on health, and having health will depend on one’s position and privilege in society. Is this not an inequity Canadians have loudly and consistently rejected? And is this not a gendered inequity?

Of course women (and men) want shorter waits for essential care. But we must also bear in mind that waiting lists increased in the mid-1990s in parallel with the downsizing of health care that followed cuts in federal transfers to the provinces. This tendency continued subsequent to the introduction of the Canadian Health and Social Transfer and concurrent tax cuts to business that deprived governments of funds needed to sustain the public medical system. Recent additions to health budgets may begin to address these lists, although much evidence highlights the uncertainty of this outcome.

Indeed, for the most part, patients are getting necessary urgent surgery when it is appropriate, but it appears that waiting lists increase with the introduction of new technologies, and this particularly for elective procedures. When these procedures have only recently been made available, they may be in high demand and yet lack the evidence base to show their contribution to overall health; this was the case for instance with the combination of high-dose chemotherapy with bone marrow transplants to treat breast cancer, which did not exhibit clear evidence of improved long-term survival in recent Cochrane reviews. Moreover, research in Alberta has also shown that waiting lists increase when physicians move into high-paying private practices to care for patients. And finally, overall health care costs can be expected to increase when physicians offer interventions of unproven effectiveness--and patients with adverse effects are sent to the public system for subsequent care.

The Supreme Court's decision to allow the purchase of private insurance to cover essential medical care, like user fees, is likely to be especially harsh for those at risk of developing (or caring for those with) chronic conditions: women. To begin to reduce this inequity, action must be taken by provincial governments--at least to limit what physicians can do outside the public system, and what they can be paid for these services.

To start, those who opt to practice privately should be required to relinquish their privileges to work in the public sector, and funding must be restored to build up a strong primary care network that will offer all Canadians holistic, comprehensive care. Canada is committed to the gender-based analysis of all its policies, and assessing the Supreme Court decision through this lens shows that it is counter to the country’s equity commitments and the human right to health for women.

(Abby Lippman, PhD, is a Professor in the Department of Epidemiology, Biostatistics and Occupational Health at McGill University, and Co-Chair of the Canadian Women’s Health Network. Amélie Quesnel-Vallée, PhD, is an Assistant Professor in the Departments of Sociology and Epidemiology, Biostatistics and Occupational Health at McGill University.)