Is Health Care a Human Right?

Trevor Burrus

Is there a right to health care? Many, including classical liberals, would say “no,” and most progressives are shocked by that answer. For progressives, nothing could be more obvious than that everyone deserves access to health care regardless of their ability to pay. Distributing medical care based on wealth is for dystopian science fiction stories, where the underclass gets back-alley doctors and the ruling class gets sleek, modern hospitals. It doesn’t belong in a civilized society.

Thus progressives ask, how can some be so heartless as to not believe in a right to health care?

In this essay, I will try to answer that question. While I might not convince you that there isn’t a right to health care, I hope to at least convey that, whatever a “right” to health care is, it is something fundamentally different from the sort of thing we usually call a “right” — so different, in fact, that we probably shouldn’t be using the same word.

I’ll be narrowly focused on that question. This essay is not about how the free market can solve health care, it’s not arguing that health care isn’t crucial to a flourishing life, and it doesn’t claim that America’s health care system is better than systems where people do have a “right” to health care. It’s only about whether it makes sense to call health care a “right.”

What We Mean When We Say, "Rights"

In October 2017, the National Health Service, Great Britain’s single-payer, socialized healthcare provider, announced that smokers and the obese would be banned from non-urgent surgery indefinitely. According to the Telegraph:

[T]he new rules, drawn up by clinical commissioning groups (CCGs) in Hertfordshire, say that obese patients “will not get non-urgent surgery until they reduce their weight” …unless the circumstances are exceptional.

The criteria also mean smokers will only be referred for operations if they have stopped smoking for at least eight weeks, with such patients breathalysed before referral.

The policy change understandably received significant criticism and brings to the fore the true meaning of “right” to health care.

What is a right? Even though “rights talk” permeates our political conversations, most people have never tried to define a right. Sometimes the term is used as a synonym for “important” — thus we hear about a right to clean water, shelter, education, and healthcare, all of which are undoubtedly important.

Yet having a “right” to something means more than that. Saying something is a “right” describes a relationship between individuals. It makes us think about our obligations to each other and the government’s obligations to its citizens. Rather than focusing on what we have rights to, I’d like to focus on the relationships that a “right” creates and the distinction between positive and negative rights.

Rights describe a relationship between at least two people: a rightholder and a duty-holder. If someone has a right, others have a corollary duty. They’re inextricably linked; two sides of the same coin.

Think of a desert island with only Robinson Crusoe, before Friday arrives. Crusoe could tell the trees and the animals that he has a “right” to life, but would it mean anything? A tiger chasing him through the grass is immune to Crusoe’s right-claim. Tigers can’t be duty-holders, so the term “right” does not describe a relationship between Crusoe and the tiger. When Friday arrives, however, Crusoe’s claim that he has a right to life implies something about the relationship between him and Friday. If Crusoe has a right to life, then Friday has a duty not to murder him, and vice versa.

The nature of the corollary duty is what distinguishes positive rights from negative ones. For negative rights, the corollary duty is an omission — that is, duty-holders are required to refrain from doing something, e.g. don’t steal, don’t punch people, don’t kill. For a positive right, the corollary duty is a duty of action — that is, duty-holders are required to affirmatively act, e.g. provide food, provide health care, or provide resources for such things. Understanding this technical, but crucial, difference between positive and negative rights can help us identify four qualities that make them categorically different.

Negative Rights are Absolute; Positive Rights Are Not

Negative rights can be enjoyed absolutely in a way positive rights cannot. Assuming no one is killing you (I hope), currently, you, the reader, are fully and absolutely enjoying your negative right to life. Similarly, if no one is stealing from you, assaulting you, or otherwise violating your body or your property then you are absolutely enjoying your negative rights to not be stolen from, assaulted, etc., and everyone else is absolutely fulfilling their negative duties.

Can positive rights can be enjoyed absolutely? It’s difficult to imagine how. If there is a positive right to health care, how much health care does that entail? When has the positive duty been fulfilled? If even one person enjoyed an absolute, positive right to health care, then, at least theoretically, every duty-holder would have to devote all of their time and resources to keep the rightholder alive for even one extra day. But that’s ridiculous, and no one is claiming that. If not, however, then what are they claiming?

Most people would say that a “right” to health care guarantees some baseline care. They grant that because resources are limited, choices have to be made. Britain’s NHS, for example, recently deemed six breast cancer drugs as “insufficient value for the money,” even though some of the drugs had been shown to extend lives by months, if not years. And when the NHS decided to bar obese people and smokers from certain types of non-urgent surgery, those unfortunate cast-outs must have wondered, “I thought I had a right to health care.” In fact, in a survey conducted in 2015, 75 percent of British doctors had seen care rationed, including the rationing of mental health care and knee and hip replacements. If you can get a knee or hip surgery in the U.K., the average waiting time is nearly a year compared to three to four weeks in the U.S.

Some argue that this question — “how much health care do you have a right to?” — can and should be answered by scientists, doctors, and policy experts, which is essentially how single-payer systems like the NHS deal with rationing. This raises a crucial and recurring point: if “experts” are deciding how much health care someone receives, then the issue is being resolved by considerations other than the right-claim. In other words, positive rights are inconclusive, in that they fail to answer our moral questions and, in fact, often just make them more difficult or insoluble.

The inconclusivity of positive rights makes them very different from negative rights. When someone claims a negative right to life, the corollary duties — who has them and what they have to do to fulfill them — are fully answered by the right-claim. While a claim to a negative right is sufficient to resolve an issue, a claim to a positive right merely inaugurates a conversation about other moral considerations. Should the young get more than the old? The skinny more than the obese? Is long-term pain amelioration, such as a back surgery, a better use of resources than giving a 95-year-old a few more weeks to live?

Obviously, because we don’t have infinite resources, such decisions have to be made. But that very fact makes positive rights categorically different from negative rights. There’s no plausible reason for politicians to consider taking away negative rights from entire classes of people — they couldn’t, for example, proclaim that stealing from smokers or the obese is legal.

Negative Rights are Scalable; Positive Rights Are Not

If you’re fully enjoying your negative right to life, then every person on the planet is currently omitting killing you. If we doubled the population of the Earth tomorrow, it would be easy for every new person on the planet to omit killing you too. Someone can easily take on an infinite number of duties of omission and extend those duties to an infinite number of rightsholders. Doubling the population doesn’t fundamentally change any question regarding who enjoys negative rights and who has a duty to respect them. The answer is simple: everyone and everyone, all the time.

The scalability of negative rights makes them truly universal rights. Negative rights make no distinctions based on citizenship, country of residence, or other forms of legal status. In fact, enjoying a negative right, properly conceived, requires no citizenship, legal status, or even government. True, it might be difficult to enforce your negative rights in the absence of a government, but that doesn’t alter the moral status of your negative rights. Critics of the positive-negative distinction sometimes inappropriately conflate the cost of producing goods and services to satisfy positive-rights claims with the cost of police, courts, and prisons to punish infringements on negative rights, but that’s a category error. “I’m entitled not to be stabbed,” is a different matter than, “I’m entitled to have my attacker investigated and jailed.”

Positive rights, in contrast, are not universal — they’re conferred by virtue of one’s legal status, such as citizenship. This means, as we’ve seen, they can be taken away or altered at the caprice of government officials, as was the case with Britain’s obese and smokers. In 2009, under Massachusetts’s “universal” health care system, 31,000 legal immigrants had their state-subsidized health insurance scaled back in order to counter budget shortfalls. While this might be required when resources are limited, it only underscores the fundamental difference between positive and negative rights.

Negative Rights Can Easily Exist Together; Positive Rights Cannot

While people can take on an infinite number of duties to omission, they can only take on a finite number of duties to act. Positive rights, therefore, exist in an uneasy relationship with each other. If there is a “right” to healthcare, education, clean water, and even a vacation, then what happens when there is a conflict between two affirmative duties?

Recently, the European Union declared that traveling for vacation is a human right, and announced plans to subsidize travel for disadvantaged people. Yet there is also a right to health care in the European Union, so what happens when a doctor’s right to go on vacation encounters a patient’s right to health care? The conflict is never that direct, of course, but positive rights, by necessity, must conflict all the time.

Like the question of how much health care someone will receive, these conflicts are “solved” by policy experts and politicians. Once again, we see the invocation of a positive right failing to solve the moral question, ultimately just kicking it upstairs instead. Whereas negative rights can exist together simultaneously, positive rights form an uneasy and inconsistent tableau of mutually unsatisfiable claims. Philosophers, such as Hillel Steiner, have called this trait compossibility, or the ability to exist together. Whereas all negative rights are compossible, positive rights are incompossible.

Negative Duties are Universally Shared; Positive Duties are Not

With negative rights, the corollary duties are equally shared by all duty-holders. No one is exempt from the obligation not to kill, steal, or assault. With positive rights, however, the corollary duties are not equally shared. As with the questions of who has a right to health care and how much do they get, we encounter further questions of who has to provide health care (or contribute to the provision) and how much they have to provide.

Again, whereas as negative right-claims require no additional moral considerations in order to determine who has a right, who has a duty, and what the nature and extent of that right/duty relationship, positive rights require secondary considerations in order to resolve the inevitable questions. Practically speaking, those questions are resolved by politics, and thus are subject to political winds.

Positive “Rights” Are Just Politically Contingent Claims to Something

Negative rights are absolute, scalable, compossible, conclusive, and universal. Positive rights are not absolute, unscalable, incompossible, inconclusive, and restricted. Positive rights are something else entirely. It’s difficult to come up with a precise term, but a positive right to health care is little more than a politically contingent claim to some health care, revocable and modifiable by morally irrelevant factors.

There’s something deeply problematic about denying people health care based on extrinsic, contingent, morally irrelevant factors. When smokers made up a larger percentage of the British electorate, the NHS wouldn’t have dreamed of denying them surgeries due to the political backlash they would have faced. Now, because smoking is becoming increasingly unpopular and morally charged among the ruling classes, smokers can be denied access to health care.

Some may say it is perfectly sensible that smokers are denied access due to their unwise decision to harm themselves while expecting others to pay for it. There is a right to health care, the argument goes, but no one has a right to make poor decisions and expect others to bear the costs.

This is a perfect example of the inconclusivity of positive rights. The initial claim to a right to health care only begins the inquiry into who, when, and how that right will be enjoyed. Smokers and the obese are being excluded based on a secondary moral limitation that exempts some people based on a political calculation, demonstrating that a positive right is less a human right and more a political one.

Moreover, in health-care systems like Britain’s, all people are forced to pay for the NHS to some degree, and private medicine is a small, niche market because the NHS crowds out the alternatives. Smokers and the obese are largely unable to pay for their decisions themselves, even if they would prefer to. Perhaps some would like to exit the NHS so their health care options weren’t determined by a political board, but there are few exit options available, especially at lower incomes.

Most important, however, is whether it is morally proper to deny people health care based on their membership in politically unpopular groups. Furthermore, even if it is proper, is it correct to call that a “right?” Such a question may seem easy when talking about those who are widely scorned, such as smokers and the obese, but what about homosexuals? During the 1980s, when AIDS swept through the homosexual community, some argued that they deserved their fate because they committed self-harm while expecting others to pay for it. During that time, and especially a decade before, it would have been very difficult for the gay community to muster up enough political support to protect their “right” to health care. Relying on politics seems fine until you’re on the other side of it.

Conclusion

Astute readers might argue that allowing the market to “distribute” health care rests on equally morally irrelevant factors, primarily the ability to pay. I concede that point to a degree. This essay, however, is not about whether the market distributes health care in a morally justifiable way, but whether there is a positive right to health care.

If we can find no such right, it doesn’t mean that healthcare is unimportant or that we don’t have other moral obligations related to the health and well-being of our fellow citizens. I believe we have contingent moral obligations to help out those in need — contingent upon first being able to satisfy our other obligations. After you’ve put a roof over your head, provided for the care and well-being of your children and loved ones, and established some amount of security in your life, you have a moral obligation to help out those in need. That, however, is not a “right” to health care.

If health care is not a right, that’s okay, because it’s not the same as saying health care is unimportant. Rights, properly understood, explain the minimal normative obligations required for human beings to live together cooperatively rather than combatively. If you don’t hit me, kill me, or steal from me, then I’ll behave the same toward you, and we can thus be members of the same community based on a system of trust and mutual respect. Rights do not exhaust, however, the maximal normative obligations that may be required of us. That shouldn’t bother us because rights can’t do more than negatively prescribe our basic boundaries. By focusing on “rights to important things” — e.g. water, health care, education, shelter — the term is perverted and used to claim more than can be justified.

Trevor Burrus is a research fellow at the Cato Institute’s Center for Constitutional Studies. His research interests include constitutional law, civil and criminal law, legal and political philosophy, and legal history. He is a member of the FEE Faculty Network.

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