The “Right” to Health Care

December 26th, 2009

By Tom Carter

HealthCareRightsThe Senate and House have both passed health care reform legislation.  There are quite a few differences in the two bills, and those differences will have to be worked out before a final bill is passed by both houses and sent to the President for signature.  At this point it seems likely that the bill will be signed into law in January or February, although it’s not a done deal yet.

An important question has arisen from time to time during the seemingly endless debate over health care reform.  Is health care a commodity like food, clothing, and housing — all essential needs of life that are nonetheless obtained by individual citizens consistent with their means?  Or is health care a right, however the term is defined?  The issue is important because it establishes the extent of our obligations to each other in terms of health care.

The first problem, which can be debated endlessly, is what the word “right” means.  The most clear understanding that can be distilled from more than two millennia of moral and political philosophy is that there are two kinds of rights, natural and legal.  Different thinkers have described and defined them in different ways, but the distinction remains.

Natural rights, or unalienable rights, are generally understood to be life, liberty, and property.  (In the Declaration of Independence, the Founders ducked the concept of property and substituted “the pursuit of happiness,” whatever that may mean.)  Those three natural rights can be understood by extension to include other, subsidiary rights.

Legal rights, on the other hand, are provided to citizens by their governments.  They can be quite different from one government to another, depending on the nature of the government and the ability of its citizens to claim legal rights.  The list of such rights in the United States, generally but not always specified in the Constitution, is very long, and many are not found in other countries.

There are key differences between natural and legal rights.  Natural rights are considered to be inherent in person-hood — everyone is born with those rights, particularly the rights to life and liberty.  In theory, they can’t be surrendered as part of the social contract that human beings enter into for mutual protection and agreed-upon regulation of their social interactions.  In fact, one of the primary purposes of government — again, in theory — is to protect its citizens from denial of their natural rights.

Legal rights are different in the sense that they generally involve government giving something to its citizens.  There may be no cost involved, or the costs may be very high.  If it is a right, health care is the most of costly of all.  If it means anything at all, it has to mean that every citizen has a right to an acceptable level of health care.  Taken to its extreme, it would mean that every citizen has the right to the same level of health care that anyone else has.

Here’s an example of how far the concept of health care as a right can be taken: 

If health care is a fundamental right, equality under the law would seem to require that everyone have the same level of care, regardless of their resources. That principle was illustrated by the case of Debbie Hirst, a British woman with metastasized breast cancer who in 2007 was denied access to a commonly used drug on the grounds that it was too expensive.

When Hirst decided to raise money to pay for the drug on her own, she was told that doing so would make her ineligible for further treatment by the National Health Service. According to The New York Times, “Officials said that allowing Mrs. Hirst and others like her to pay for extra drugs to supplement government care would violate the philosophy of the health service by giving richer patients an unfair advantage over poorer ones.” The right to health care is so important, it seems, that it can nullify itself.

President Obama and the Democratic Party state that access to adquate health care is a right.  Senator Chris Dodd said, “So today we stand ready to pass a bill into law that finally makes access to quality health care a right for every American, not a privilege for a fortunate few in our country.”  Senator Harry Reid said that the just-passed Senate health care bill, “…acknowledges, finally, that health care is a fundamental right—a human right—and not just a privilege for the most fortunate.”

Does the Republican Party stand as an obstacle to this new right to health care?  Well, as one might expect, they kind of do, but they really don’t.  The Republican Party platform doesn’t say that health care is a right, and they’ve published what they call a “Health Care Bill of Rights for Seniors” which would protect at least older people from government encroachment on their health care decisions and coverage.  Of course, it relates in large part to Medicare, which has become a right in practice if not in name.  Republicans, like all politicians, are concerned about remaining in office, and that goal won’t be furthered by stating plainly that people don’t have a right to health care.

Why does the question of a right to health care matter?  Aren’t we going to get the same things, at the same costs, whether health care is a commodity or a right?  Not at all.  Once it’s accepted that every American has a right to health care, at least at the minimum acceptable level — and, sure as the sun shines, eventually at an equal level to any other citizen — there will be no way to limit the scope of health care programs or enact cost-saving modifications to existing entitlements.  After all, that would be a denial of “rights.”   

For additional information:

Constitutional Topic: Rights and Responsibilities, U.S. Constitution Online
Renewing America’s Promise: The Democratic Agenda, DNC
Health Care Reform: Putting Patients First, RNC
Health Care Bill of Rights for Seniors, RNC
Should all Americans have the right (be entitled) to health care?,
What ‘right’ to health care?, Jeff Jacoby, The Boston Globe
A Peculiar Concept of Freedom, Tom Bevan, Real Clear Politics
There Ain’t No Such Thing As a Free Lumpectomy, Jacob Sullum,
Natural Right,
Natural and legal rights, Wikipedia

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12 Responses to “The “Right” to Health Care”

  1. Brianna |

    Tom – you mention that the founders ducked “property” in the Declaration. I am not positive that this is true (I heard it from the evil Glenn Beck program) but a theory I have heard as to why this is the case is that the founders did not want southern slave owners pointing to the Declaration and saying, “I have a right to my property! See, it says so right there!”

    Just a theory. But based on the attitudes of a lot of the framers towards slavery (Jefferson tried to write slavery into the Declaration as one of King George’s offenses against the colonies, and Washington and Franklin were abolitionists), I am willing to bet that there is some truth to it.

    Also, property may not have been explicitly listed in the Declaration, but it was listed in some of the State charters and constitutions (Massachusetts pops to mind). Just a thought.

  2. Tom |

    Slavery may have been part of the reason, but remember also that the Declaration of Independence includes the phrases “all men are created equal” and have “unalienable rights” that include liberty. More likely, they had a specific concept of public happiness in mind.

    Throughout the writing of the Constitution itself, slavery was the elephant in the room. Unless slave-holding states were satisfied, the Constitution would never have been ratified. So, the word “slavery” isn’t in the Constitution, although there are euphemisms, and necessary concessions were made.

  3. Brian Bagent |

    Tom, you’ve done a good job of defining the difference between rights and what could more accurately be called privileges (“civil” rights being the term that has been bandied about most frequently). The former class is, as you indicated, native to us as humans; the latter is a result of government involvement. The real problem is that privileges can be just as easily taken away as they are given. Additionally, in order for the government to “give away” anything, it must have first taken something from somebody else, and without exception at the expense of that person’s natural rights. Government doesn’t produce anything, it just turns mulch. We don’t need anyone to turn our mulch for us.

    Good government shouldn’t be in the business of granting privileges. It simply allows for too much corruption, such that many of the beneficiaries of the privileges need only become “friends” of the politicians in order to collect their booty.

  4. Tom |

    What might work better is a construct of three tiers.

    At the top are natural rights which inhere to all human beings, with the legitimate role of government being to protect these rights, essentially a negative role.

    Then there are legal rights, which the people grant to themselves through the agency of their government. These include, in the U.S., such things as the rights to trial by jury, not to be forced to incriminate oneself, not to suffer double jeopardy, to receive due process and equal protection under the law, not to have soldiers quartered in their homes, to keep and bear arms, etc — the list is long. These are embodied in the Constitution and could only be withdrawn by constitutional amendment, a difficult process requiring very significant democratic support.

    Finally there are privileges in law. Unlike legal rights, these privileges do not necessarily apply to every citizen. For example, there is no right to serve in the military, fly airplanes, drive cars, etc. These are all privileges that federal and local governments grant to some of their citizens.

    Although not relevant to this discussion, it’s interesting to note that natural rights in a state of nature can be enjoyed only by those strong enough to defend them. In order to protect life, liberty, and property, people contracted with each other in clans, tribes, other social and political groupings, and finally in nation-states to defend their rights against stronger and more aggressive people. To get beyond theory, it’s necessary to say that all people have natural rights to the extent they can be defended. That’s the simple point that anarchists and like-minded folk usually miss.

  5. Brianna |

    I’d say the second “tier” would be embodied in the first, as they are basically the technical means by which the government’s defense of natural rights is carried out. For example, trial by jury is simply a way of making sure your government cannot take away your liberty without due process, and to make sure the government is acting fairly in as foolproof a manner as is available to falliable humans. I suppose there could be other ways to make sure that doesn’t happen, but trial by jury has worked well enough over the last couple of centuries that I don’t think there’s any serious need to search for one. As for your third “tier”, I’m still pretty divided as to whether they should belong to government at all. Don’t particularly feel like arguing this yet, so I’d appreciate it if we didn’t start debating it here, but I did want to throw it out there.

    What you said about rights being defended – it’s true that in an anarchy, you’d only have rights to the extent that you could defend them… provided there were other people floating around to defend them from. The corollary of that is that you would also have a “right” to whatever you could steal from others, provided you were strong enough to do so. However, stealing is clearly not a natural right. So a better test of what a human being’s natural rights are is to put him in a scenario in which there are no other people. What you can do in that scenario would be your natural rights. (Note that in such a scenario, demanding health care of the grass and trees wouldn’t work so good 🙂

  6. Tom |

    Brianna, I would just add that natural rights, in theory, exist for every person regardless of the kinds of governments involved. Legal rights vary greatly from government to government, although all are presumably directed toward the protection of natural rights and the enhancement of civil society. That’s what makes them different from natural rights.

    As far as privileges are concerned (the third tier), government involvement is essential. I’d like to know that the guy driving on the freeway with me, or the fellow flying the plane I’m in, or the doctor cutting on me, or the lawyer representing me, or (pick an example) have all been certified by government as being competent.

  7. Brian Bagent |

    I’d suggest that licensure is not a very good guarantor of competence, as much as we would like to believe that it is. There are 50K+ traffic fatalities annually here. In addition, there are better than 100K cases annually of patients dying at the hands of their doctors and nurses that were probably preventable. Planes crash in spite of the fact that certified mechanics work on them and certified pilots fly them. Innocent people go to prison and lose law suits in spite of the fact that board certified lawyers represent them.

    The point I’m making is that ultimately, our freedom and safety are up to us. Constant vigilance is a better guarantor, though not perfect, than all of the licenses that government can grant. That is the burden of freedom.

  8. kevin |


    The “belief” that for the government to give somthing to someone it must first take something away from someone else is hogwash.

    Wealth combined with economy are man made ideas. Therefor all wealth contained within a economic system is basically an illusion,its not real unless we “believe”

  9. Brianna |

    Really. So the food you eat, the clothes you wear, and the roof over your head are “illusions” that only exist so long as you “believe” that they do? And the corollary, that you can walk out into the middle of an empty field and conjure such things into existence through your “belief”, is that true as well?

    Wealth is not pieces of paper or even gold. True wealth is the possession of goods and services. The computer I am typing on is a good, the knowledge of how to use the keyboard in a speedy and efficient manner is a service. An economy is simply the sum total of all those goods in services in existence, the people who possess and create them, and the exchange of these goods and services between those people. Money’s value is not in its intrinsic properties (certainly fiat money’s value is not!), but rather in the fact that it is a unversally recognized value that everyone is willing to accept in place of their goods and services in order to facilitate exchange. Because government is not capable of creating wealth (just ask anyone who’s ever been forced to live in a government-run economy!), this means that any wealth government has, it must obtain by taking it from someone who does create it, i.e. its citizens. Sometimes, the government takes this wealth for a reason we all agree is necessary, i.e. defense. More often, it takes this wealth for a purpose that some or all of us disagree with instead, i.e. public housing projects, in which the government’s record has historically been atrocious.

    But if you don’t believe me, feel free to will all of your worldly possessions out of existence, walk into that empty field, and conjure them all back out of thin air through your “belief”. Please.

  10. Brian Bagent |

    Kevin, I wonder if your beliefs extend to your own self. Suppose, for example, I were to come over to your house and dispossess you of it and all of those “illusory” things you have purchased over the years. Would you be upset by that? Would you go so far as to call the police and have me arrested for burglary? If you would be upset, if you would call the police, then you’ve demonstrated that what you’ve said is absurd because you view all of those possessions as “yours.”

    Private property and wealth are extensions of ourselves. I own my body and my mind. The things I think, and the results of those thoughts when made into action, are mine as well. If you do not have any right to tell me what to think, nor to tell me what to do, how do you suppose you might come by the right to tell me how I must dispose of things which I have earned with my mind and body? Clearly, you do not have the right; however, you certainly exercise power over me with your political choices.

    I am perfectly happy to let you, and people like you, make your own decisions and do your own thing, for good or ill. I wish that you would extend the same courtesy to me and people like me.

  11. Dan |

    The difference between an unalienable right and a civil right is in belief only. In practice “unalienable rights” is just a play on words. There are no human rights except by legal or civil contract. As far as healthcare becoming an unalienable right, it only makes sense to those who strive to maintain a sense of civil justice. For those who take more of a survival approach to the meaning of our lives, it has no justification.

    To maintain the strength of our civil contracts we need to realize that access to healthcare is no longer the result of one’s individual efforts. Those who have financial security like those who have health care tend to believe that their individual effort alone provides their security. Not so! Like the recent economic collapse, all were adversely affected but the fault rests with a relative few. Everyone pays when the process they must depend upon fails them. That is why healthcare should be a right and not a privilege. We are all responsible to the system that we have to depend upon.

  12. Brianna |

    “There are no human rights except by legal or civil contract.”

    So… if I walk into your house with a gun, demand all of your worldly possessions, and shoot you on the way out, it’s okay as long as we’ve already decided in advance that the “civil contract” does not entitle you to life, liberty and property? You contend that you have no intrinsic right to any of those things?

    “As far as healthcare becoming an unalienable right, it only makes sense to those who strive to maintain a sense of civil justice.”

    A civil justice balanced on *whose* back? What kind of “civil justice” gives artificial rights (health care) to some by taking real rights (right to property) away from others? Why is stealing wrong when an individual does it for his own pocket book, but okay when it is enacted by a third party in the name of the poor and downtrodden? And if it’s really all so noble and heroic, why haven’t you been able to convince 65% of the population that this fiasco is a good idea?

    “For those who take more of a survival approach to the meaning of our lives, it has no justification.”

    For those of us with a “survival approach” to our lives, the protection of inalienable rights for all has *every* justification. I worked hard for years to get my education and am very much grateful that I am able to keep the fruits of my labor (a good paycheck) via the recognition of my inalienable right to my honestly acquired property. Nor am I foolish enough to think that robbing my neighbor today for immediate gain is a better proposition than collaborating with him to produce wealth for both of us to enjoy tomorrow, or that I could possibly defend my right to life, liberty and property without also defending his. It is true that in the absence of a “civil contract” recognizing certain “inalienable rights” the system of society will break down, but that is precisely because such a society would not be recognizing reality when it decided that it did not have to “grant” their citizens those rights (I put “grant” in quotes because government does not and cannot grant inalienable rights, it can only recognize and protect them… or not).

    Once you realize that rights are not granted by government, merely recognized and protected (or not), you quickly realize that if the acceptance of a “right” does not lead to good and positive consequences, it probably isn’t a right after all. And in regard to this, I think the outcomes of socialized medicine in other countries speak for themselves. Or have you never read the articles that point out that the NHS system has subsisted on immigrant doctors since the 1960’s, that much of the medical infrastructure in Britain was built before the advent of socialized medicine in that state, that ambulances in Japan sometimes have to call over a dozen hospitals before finding one that can take their patient and even emergency patients are often turned away from hospitals for lack of resources, that most countries with socialized medicine are deeply in debt with unfunded liabilities they’ll never be able to pay and are trying to reform their countries in the direction of privatization and the free-market, and that there are towns in Canada who have been forced to hold lotteries to assign primary care physicians to families?

    “Those who have financial security like those who have health care tend to believe that their individual effort alone provides their security.”

    Individual effort is not the only factor in success. But it is the determining factor, as any successful person will tell you (myself included). I have seen siblings from the same family with the same degree of talents and abilities go through the same circumstances, be given the same degree of opportunity, and end up in vastly different places. One of those siblings is currently self-supporting, living a modest but comfortable existence and starting to build his career. The other is barely subsisting with a minimum wage job. I find it hard to believe there was any difference in that (true) scenario except that of the degree of effort put forth by the individuals involved.

    If an individual is willing to do what it takes to succeed, than while help by others will certainly benefit him, it is very unlikely to have the power to make or break him. If he is not willing to succeed, than no amount of assistance will put him in a position of success. That is why health care is not a right, and neither is any other so-called economic “right” that intrinsically depends on forcing people to “help” one another in the name of “civil justice”.

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