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Should universal health coverage include immigrants within the “universe?” Should federal taxpayers subsidize health insurance coverage for immigrants, even those who are undocumented? Should all immigrants be required to purchase health insurance? Although the Affordable Care Act (ACA) is conceived as a progressive project to expand access to coverage and promote equity in health care, it intentionally left out the 12.5 million undocumented immigrants living in the United States and preserved the existing restrictions on subsidized coverage for lawfully present non-citizens. In fact, it increased the disparity in access to health care between U.S. citizens and immigrants. As a result, immigrants suffer disproportionately from delayed treatment, unnecessary pain and suffering, and stress.

This Article introduces a new paradigm for analyzing the issue of immigrant access to the health care safety net, arguing that immigrants should receive equitable access to subsidized health coverage. It builds on the principles of Health Justice, an emerging model of health law based on a communitarian conception of social justice. Health Justice offers a framework for understanding how universal access to health care protects collective as well as individual interests but has struggled to define who should be included in the universe. This Article demonstrates that the ethical norms underlying access to health care—the principle of need, which directs health care providers to offer care to those in need, and the principle of mutual aid, which dictates that health care resources should be distributed based on medical need—provide this missing definition and support the inclusion of immigrants in the community entitled to health care.

This Article illustrates how recognizing immigrant populations can strengthen both health care policy and theory. Understanding how and why immigrants have been left out of progressive efforts to subsidize health insurance coverage can help to illuminate the fundamental defects in our health care system that perpetuate these and other inequities. Inclusion of immigrant health care rights also refines and fortifies the Health Justice framework as a tool for influencing progressive legislation, doctrine, scholarship, and advocacy. Finally, this Article begins to make the case for why communitarianism is a useful lens for analyzing problems of access and equity in the U.S. health care system.

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University of Pennsylvania Journal of Law & Public Affairs