Terming health care a “basic human right” may make an advocate feel more politically virtuous and caring. Nevertheless, such phrasing only oversimplifies and stunts the necessary debate remaining over how our health care system should and could operate better. The rights-based approach to health care reform remains wrong as a matter of U.S. law, history, politics and economics. We can do better than just recycle another round of these empty words.
From a constitutional law perspective, there is no “right” to health care. The unalienable natural rights highlighted in the Declaration of Independence include life, liberty and the pursuit of happiness. But those rights can neither be granted by government nor taken away. Hence, the Constitution’s Bill of Rights focuses on so-called “negative” rights — personal freedoms and rights of action upon which government cannot infringe, rather than goods and services it must provide. Positive rights might promise to guarantee something universally and absolutely, but they would first have to take away some other rights from someone else to do so.
Sketching out the legal boundary lines for imposing duties on others to sustain someone’s life or ensure their happiness is far harder to do in practice than through more facile rhetoric. At best, this is generally attempted through statutory law entitlements that provide formulas and eligibility criteria for collecting funds from taxpayers to reward qualified beneficiaries with either cash grants or particular services.
Even these political decisions involve imperfect tradeoffs, not fixed absolutes, but they usually lack the flexibility to readjust and adapt readily to later economic realities. Hence, their predictable legacy is a mounting pile of budget deficits and unfunded “owe as you go” liabilities to be deferred as long as possible before being imposed belatedly on younger and future generations!
For health care, the unbounded language of absolute rights fails to deal with the underlying questions of how much does one get, who pays for it and who must provide it. Any answers involve compromises that need frequent re-examination. However, our political system has been particularly poor at the task of setting adequate floors or sustainable ceilings. In this case, your individual mileage may vary, but past performance is a good predictor of future results.
To keep from coming up short, it would be far better to set more achievable, targeted goals that balance reliance on the efficiencies of market production and allocation, competitive incentives for innovation, and accountability for promised results with more generous protection of the most vulnerable members of society who cannot take care of themselves (either permanently, indefinitely, or temporarily).
To be sure, our mixed public-private health care system falls short in many regards in achieving these goals. That disappointing record, and options to improve it, merit not just a robust, evidence-based debate but much greater resolve to actually change it. Merely mouthing the words, “Health care is a right,” is just another dodge aimed at shutting off legitimate debate over the wisdom and prudence of different means to deliver it more effectively, efficiently, and equitably. This distracts us from the serious issues actually requiring more difficult reflection, concentration, compromise and sacrifice.
Moreover, this involves far more than another round of politics as usual. Indeed, we really cannot even begin to fix our troubled politics by overloading it with more tasks than it can manage competently. Given the current gaping distances between past political promises and recent performances, health care remains far too important to be left largely in the unsteady hands of the federal government.
We do have a “right” to insist upon better health for all Americans, by pushing for a more accountable health care system in which patients and providers are mutually responsible partners in seeking and producing better outcomes at lower costs. Governments at all levels still have a necessary role in ensuring effective rules for transparent competition and honest dealing, filling in the gaps where markets fall short, and redistributing resources compassionately to the less fortunate.
But if we want to get and stay healthier, we all will have to make better decisions in how we manage our lives and in how we navigate through our health care choices. Outsourcing them once again, with even fewer bounds, to political intermediaries would represent another triumph of hope over experience.
In short, you do have a right to health care if you pay for it, or if you can get someone else to pay instead. Most of modern health care politics involves squabbling over respective illusions that we can somehow all come out ahead in that latter pursuit. If we value and enhance the first part of those exchanges more than the second one, we might again make more progress.