Our pal Ken at Popehat (see also Dave Schuler) asks whether there can be an affirmative constitutional right to health care and whether there already exists an affirmative constitutional right that could be compared to an affirmative right to health care. He says no, and I’d be interested to see a coherent argument that there is without defining the word “right” in a way that it has never been understood in the United States.
This has been on my mind quite a bit of late, because I keep seeing this argument that health care is a fundamental, positive human right (sometimes quoting the Declaration of Independence “life, liberty, and pursuit of happiness” language) that the government has an absolute obligation to provide. As many times as I’ve seen it, I’ve never been able to figure out how it makes any sense. Rights, generally speaking, are absolutes for which infringement is justified only in particular, usually exceptional circumstances. This is, to my mind, definitionally true – in order for a right to be infringed, the scope of that right has to be defined well enough to know it is being infringed, and by whom.
Put another way, they are generally non-excludable and non-scarce – although there may be a right to bear arms, there can be no right to be provided a government-issued AR-15. There is thus a definable and timeless ideal with regards to any “right” that can at least theoretically be achieved: the right to say whatever you want without interference from the government, the right to be imprisoned only for actual crimes you committed, the right to a trial by jury, etc. In this sense, I can see a strong argument that there is a right to seek health care without government interference for the same reason why there can be a right for adults to enter into consenting relationships or contracts with other adults (whether these should or should not be considered fundamental human rights is a different topic – the point is just that they at least can be rights in theory).*
But the idea that there is a fundamental human right to receive health care without regard to your ability to pay makes no sense because there is no conceivable, static ideal – what counts as an ideal level of health care varies from person to person, country to country, and year to year. I can’t, for instance, have a right to a life-saving treatment that doesn’t exist yet.
Perhaps you can say that this is sophistry – you can always frame the right as being a right to the best care available at a given time within your country. Well, fair enough – but define “best.” Is “best” the care that most prolongs your life (“life”), is it whatever course of treatment you decide is best without regard to cost (“liberty”), or is it the care that most improves your quality of life (“the pursuit of happiness”)? Or is it somehow all three? And regardless of how you define “best,” how do you handle the fact that health care is a scarce resource with greater demand than there can possibly be supply? In other words, if everyone has an affirmative right to the “best” healthcare, but there is only enough supply to provide 50% of the population with the “best” healthcare, how do you decide whose rights will be respected and whose disregarded without violating the quite real fundamental human right to equal protection under the laws?
You can try to get around this issue by saying that people have a right to a certain minimal level of health care – but how do we define that minimal level in a meaningful way? The minimal level of health care that we would expect someone to receive in the US today would have been completely unavailable to even the wealthiest robber baron 100 years ago, and I hope that what we will deem a minimal acceptable level of healthcare 100 years from now is unavailable today. In fact, I would dare say that the level of care that was available 100 years ago would be justly viewed as close to worthless today.
Another way of avoiding this problem seems to be an insistence that there is an unlimited right to “effective” care. But what makes care “effective”? Is the metric of effectiveness simply the average number of days/years a treatment can be expected to prolong a person’s lifespan, or is it the average cost divided by the average number of days it can be expected to expand someone’s life-span? Is it the average amount of additional contributions the patient will be able to make to society? And how do you factor in reduced pain or other quality of life factors in determining cost-effectiveness? Is there an ethical basis for how much to weigh each of these questions?
Again, though, none of this is to say that strong social safety nets are unwise or unconstitutional. I’ve made pretty clear in the past about my support for Wyden-Bennett, and I’ve also even said that I think it likely that a single-payer system would be an improvement (or at least no worse than) the status quo. But thinking of health care as a fundamental human right that the government has an affirmative duty to provide quickly devolves into incoherence. It also unintentionally validates the worst fear-mongering by the political Right since, as I note above, there is simply not enough supply to provide everyone with the ideal level of health care which means that someone is going to have to figure out how to allocate those resources….the Right calls these someones “death panels.” While there is actually a strong utilitarian argument for such decisions to be made by the government to determine the cost-effectiveness of a course of treatment, such decisions deprive individuals of the moral agency to make their own decisions about whether they wish to live or die, and thus the utilitarian argument is precisely why the “death panels” canard struck such a chord. And, yes, I’m aware that this is what insurance companies already do in one form of another, but people have a tendency to prefer the devil they know to the devil they don’t.
The point of all this is that the rights-based argument for universal health care is a bad argument that, frankly, I don’t think a lot of its proponents truly believe when push comes to shove. Most are quick to point out (correctly) that even under a completely nationalized health system, there would still be no restriction on an individual’s right to obtain supplemental private health insurance and care above and beyond the baseline levels guaranteed by the government. Just about all recognize that minimal levels of acceptable health care will and should rise as a society becomes wealthier and more technologically advanced, which is why I suspect there is usually little real attempt to define what a “minimal level of acceptable health care to which one has a fundamental right” actually is. Finally, few proponents of universal health care seem to think that the supposedly fundamental human right to health care extends to treatment that fails to meet some socially agreed-upon but inherently arbitrary metric of “effectiveness.”
What we are ultimately talking about, instead, is the amount of health care a particular society should be responsible for guaranteeing to its denizens at a particular point in time. This amount will change as a society becomes wealthier and able to guarantee higher levels of health care without destroying other priorities, or if it becomes less wealthy and thus able to guarantee only lower levels of health care without destroying other priorities. It will also change as technology advances and older technology becomes less expensive. It is, ultimately, something that is and needs to be easily susceptible to democratic processes; fundamental human rights, however, cannot and certainly should not be so easily suscepible to such processes, at least not as Americans have always viewed fundamental human rights.
*The existence of this alternative view of health care-as-a-right is a major reason why I think proponents of universal health care are over-reading the many polls showing an overwhelming majority of Americans saying that health care is a right. The other major reason is that the phrase “health care” is such a broad and unspecific term that it becomes difficult to derive much meaning from poll responses. Frankly, if I were asked the blanket question “should health care be considered a human right,” I would probably even answer yes. If you framed the question in the manner that the idea of health-care-as-a-right is just about always used in practice, though, (ie, is there a fundamental human right to receive health care free of charge or without regard to ability to pay), then I suspect the answers would be rather different).