Saturday, April 14, 2012

Is Health Care A Right?

In a recent discussion on FaceBook I was having with a friend who works in health care, another of her friends posted the following:

From my perspective, the key question is whether healthcare is a right or a privilege.
If it is a right, then there must be a way to provide an appropriate level of basic health care for all and an opportunity for the market to offer extended benefits (think Medicare-for-all with Medicare Advantage-like extended benefits).


Here is my answer to this question:

With respect to health care being a right under the US system of law, I would say it most certainly is...in the same sense that all the rights guaranteed under the Constitution are negative rights; in other words our bill of rights are all constraints on government action and conversely acknowledging the freedom of the individual citizen to act. We are thus told, not that we have a right to happiness, but the right to pursue happiness unimpeded by government. So health care is a right, by this American system of thought, in that the government can never deny a citizen health care. This may seem axiomatic, but it's actually an important distinction born out by the way in which interpreting rights from this negative approach (the US way) as opposed to interpreting them from the positive approach (to a great extent the European way) plays out in practical terms. Let me lay some ground work.

The US value of equality is an approach to the concept as process, i.e. all citizens shall be viewed under the law as equal. All shall be treated the same without regard to age, sex, economic class, religion, etc. This is what is known as a legal fiction, because in reality no one, not even identical twins are equal. We all have differences in height, weight, strength, natural abilities--but the legal fiction is that we are all viewed by the law as though we were the same; no one shall be given preference or be discriminated against because of his differences from another. Thus lady justice is depicted as blindfolded so that she may not see the differences between those who stand before her. As an aside, this idea of legal fiction is the principle at work in the recent SCOTUS decision that classified corporations as persons. This is nothing new; it goes all the way back to the Roman Empire. The word "corporation" is derived from the Latin corpus meaning "body". The Romans invented the idea of treating a "body" of people, (a club, a church congregation, an association of business partners), as a single person to make it easier for legal transactions such as taxation or law suits. So this already has a long established precedent in US law and indeed can be traced back to English common law. In much of the European social democracies, however, equality is rather interpreted in the positive sense of result, i.e. the government shall be responsible to achieve equality of outcome for its citizens.

The first thing to understand is that these two views of equality are mutually exclusive; they necessitate two completely different and indeed opposing actions from government. The US (negative) view of equality demands that the government in no way takes into account the advantages or disadvantages of its citizens in its behavior toward them. The European (positive) view of equality necessitates that citizens are categorized by their advantages and disadvantages, and then treated in vastly different ways so as to level out the results. It should be obvious by now that we in the US are, bit by bit, losing our historic understanding of equality and replacing it with the European ideal of equality of result.

If we look at the positive and negative views of health care as a right, the same sort of contradictions arise. In the negative view the single incumbency on the government is to leave the citizen alone to pursue her own health care from those whose livelihood it is to provide it. But from the positive view the incumbency on government is to either be the provider of health care, or to be the agency of the provision of health care; in both cases this leads to tyranny of government. At first blush this seems counterintuitive--how can so altruistic a goal as universal government-supplied health care lead to tyranny? Quite easily, it turns out.

First, let's consider: what is a "right"? I propose this as a working definition: a right is a moral and just claim on the part of an individual. In all US style negative rights, that claim can be stated something like this: "I have the right to say what I want, to worship the God I please, to associate with whom I wish, to not be searched or have my property seized without due process of law, to own and carry a gun with which to defend myself, to not be taxed or governed without my consent." Notice the defining principle is the action of the individual and the restriction of action on government. But the positive right claim might be expressed this way: "I have a right to be provided with health care (or a job, or a place to live)". The initiating action has switched from the individual to…? Well, some one other than the individual, someone else who will provide this thing or service being demanded. And of course that means the government. But what the government provides it must first take from at least some of its citizens. To illustrate this in its most stark terms, let's, in the words of Einstein, do a thought experiment. Let us suppose that one day all the doctors, and all the nurses, and all X-ray technicians, and all the other health care professionals in the United States got fed up with medicine as a career and quit. And let us further suppose that the United States had at this point fully adopted the European notion of health care as a positive right. What would the government do? It seems obvious that faced with the legal obligation to provide health care to its citizens--to satisfy their right to it--they would have to force those health care professionals back into service. Now this is an obviously absurd proposition, but it illustrates an idea already at work in the US health care system. Our legislature has made it illegal for a hospital to turn away a patient--any patient--from emergency care for failure to pay, and so, at least to a small degree, health care professionals are already being forced into service. The professionals are not forced to work without pay, so it is the hospitals which must bear the cost, which they in turn pass on to other, paying patients and mostly to their insurance providers.

So, the first level of tyranny is the imposition by government of the costs of mandated health care on those who provide it, and citizens who have not benefited from the care (patients who pay the hidden costs of care provided for others). The second level of tyranny is the realization of that which the negative view of health care as right guarantees against--the denial of care.

The question was posed as to whether health care should be viewed as a right or a privilege. I would say that viewed from the negative rights position, it never runs the risk of being a privilege (in the sense of being either granted or denied at the discretion of government), but under the positive view it by necessity becomes a matter of privilege in that it is subject to the discretion of government and the exigencies of its resources. That which the government grants it can deny. Let's look at two ways in which this happens; one is bad, the other is much, much worse.

Under the English public health system, those that have the resources can purchase private health care, but under the Canadian system even that possibility is closed from the citizen. The Canadian government has become the sole provider of health care, and they deny all other providers. This is why, when wealthy Canadians, or members of the Canadian Parliament, get serious heart trouble or cancer, they come to the United States for surgery or treatment. Even middle-class Canadians, as they become more and more desperate languishing on interminable waiting lists for care, will sell their homes or cash in their retirement funds to come to the United States for treatment. But even the more benign English public health system is fraught with enormous cost problems. Consider that the public health care system of tiny little England is the 4th largest employer in the world. And consider the irony of the fact that England, where the MRI machine was invented, performs MRI tests at a minuscule per capita rate in comparison to that which is done in the US.

And now for the worst form of government tyranny in health care. Do you remember the older pastor and his wife from Bulgaria who are supported by Meadow Springs Community Church? [This is the church I and my friend both attend] If you recall, she has heart trouble. Bulgaria, while no longer a Communist country, still has a public health system, but being an economically depressed nation, their resources are quite limited. When the couple visited a few years ago, the story they told us was that when a citizen of Bulgaria reaches the age of 65 they are cut off from all health care. All health care! By government mandate, no more resources will be "wasted" on them. That is truly a denial of health care.

Socialism is no longer an either/or proposition, but rather a spectrum. I subscribe to the redefinition of socialism put forth by Kevin Williamson that Socialism is government control of the means of production, supplanting the former definition that it's government ownership of the means of production. I would further assert that the United States has already progressed quite a way across that spectrum, with the trend directed further still. I believe this is a grave error and an abandonment of the values and principles upon which this country was founded: liberty, limited government, the personal morality and religiosity of its citizenry. As for health care in this country, I believe many of the solutions to the present "mess" and catastrophic costs are to be found in free market solutions, indeed by actually allowing a free market in medicine--something which, for all the lamentation by the press and social utopianists about the "greed" of the profit motive and the "immorality" of profit in medicine, does not really exist under our present tax and medical insurance structure. For further reading on this matter I would point you to a book by a Canadian doctor who has worked under both the Canadian and the American health care systems, Dr. David Gratzer, called "The Cure: How Capitalism Can Save American Health Care."

5 comments:

Daniel K Day said...

This is somewhat off topic, but I would like to point out your use of "negative rights". What is the historical basis of this term? What I'm familiar with is the prevarication by the current President during his first campaign, when he mischaracterized the Constitution as telling what the federal government can't do. This is true only for the amendments. What the original Constitution does is specify what the federal government shall do, defined by prefatory clauses, with the clear implication that whatever is not in the Constitution, it shall not do.

Daniel K Day said...

Sorry if that sounds snippy, I don't mean it that way. The term "negative rights", like "capitalism" (Marx's construction), has negative connotations that are useful to our enemies, and I prefer to avoid them.
The implications for the constitutionality of the Department of Health & Human Services, the EPA, Housing and Urban Devt, etc etc are obvious.

Don Mitchell said...

I've been criticized for relying on Wikipedia, but it's convenient.
http://en.wikipedia.org/wiki/Negative_rights

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