Thursday, October 30, 2008


As I opine here, the answer is "no." As mentioned, healthcare is not a right, because it is a service that must be provided by others, and no one has a claim of right on the endeavors of another. There is no claim, for example, that one's rights are violated if the police do not prevent a crime.

Furthermore, healthcare is not only a service, it is a limited resource, and the fact that it is limited makes it practically impossible for it to be a right. "Limited" implies that not everyone can have it, and it is absurd to argue that there is a right to something that one cannot have. Consider for example the case of claiming that liver transplants (which are inarguably healthcare) are a right. Obviously there are not enough liver donors to go around, so some people who will die without a transplanted liver will not get one. Any "right" to a new liver in such a case is a rather hollow one.

As a practical matter all heathcare is rationed. This fact is incompatible with healthcare being a right, and it is mere demagoguery to pretend that this is not so. Likewise, healthcare is not a right because there is no firm understanding of what healthcare is. Chiropractic therapy can reasonably be considered healthcare when applied to musculoskeletal ailments, but might be viewed more skeptically when considered a cure for cancer. Aromatherapy may have some health benefits, but it is a strained argument that asserts that it is a right. Some cosmetic procedures might qualify as healthcare while others would not, but drawing the distinction would seem contrary to the spirit of rights.

The range of healthcare services includes a number of interventions of varying degrees of cost, effectiveness and availability. This necessitates the judicious use of some of these modalities, allowing access to some people but not others, again a situation anomalous to the common understanding of rights.

To get around these informities, those who assert that healthcare is a right qualify their claim by saying that "basic" healthcare is a right, a limitation that argues against the premise. That is like saying that the First Amendment guarantees a right to express basic opinions or practice basic religion. Civil libertarians would find little comfort if the Fourth Amendment protected the right of the people to be basically secure in their persons, papers and effects. Rights should rest on firmer foundations than transient interpretations of what is "basic."

Finally, the Supreme Court, through Justice Marshall, understood the importance of healthcare without being gulled into recognizing it as a right (Estelle v. Gamble, 420 U.S. 97):

Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind."

In fact, the Sumpreme Court was even more explicit:

The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents.

Maher v. Roe, 432 U.S. 464 (1977) If the Consititution imposes no obligation to pay for the medical expenses of indigents, it cannot be said to guarantee healthcare as a right.

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