Last October, in the second presidential debate, Barack Obama declared that health care "should be a right for every American." His electoral victory and the expansion of Democratic congressional majorities virtually assure that the debate over health care in America will heat up again. Liberals and conservatives will joust over a variety of arcane concepts—single-payer, play-or-pay, employer mandates, individual mandates, community rating, pre-existing conditions, health savings accounts, tax credits, risk pools. Beneath the minutiae, however, will lurk a philosophical dispute, framed by Obama's assertion in the debate: is health care a "right"? With Americans deeply ambivalent about health care policy options, it is important to come to grips with the first principles that ought to guide policy. This requires us to engage in some serious thinking about rights.
Modern liberalism has staked much on the notion that health care is a right. Franklin D. Roosevelt declared it so in his 1944 State of the Union message, when he included health care on the list of economic provisions that should form a "second bill of rights" parallel to our existing political one. Since then, several presidents have tried to father universal national health insurance, and Lyndon Johnson won enactment of Medicaid and Medicare. Politically astute liberals (including Roosevelt himself) have attempted to link the right to health care, like other positive economic "rights," to the American political tradition: a natural right of some sort, or a civil right necessary to put into effect the natural right to life or the pursuit of happiness.
Natural or Civil Right?
Clearly, however, health care is not a natural right as the founders or John Locke would have understood it. In their view, natural rights exist prior to the formation of government. Since there is no government in the pre-political state of nature, there cannot be a right to government-supplied health care in the state of nature. One has the right to speak one's mind, to defend oneself, and to acquire property in the state of nature, but no one has the right to a free checkup at the National Health Service in the state of nature, because there is no National Health Service.
Nonetheless, perhaps health care could be regarded as necessary to effect the natural right to life or the pursuit of happiness, and consequently, it should be treated as a civil right. This formulation, too, is greatly flawed.
The first problem is that even if the right to life led to a positive government obligation to provide health care, that right would logically be restricted to medical actions essential to preserve life, especially emergency measures. Yet medical professionals already provide life-saving emergency care in practice, without a grand declaration of rights; in any event, such a limited guarantee is far from what policy activists have in mind. Likewise, if a civil right to health care derived from the pursuit of happiness, one would have to show that it is positively correlated—perhaps even necessary—to the achievement of happiness. Yet this conclusion is surprisingly difficult to support. There are, as it turns out, a number of surveys that attempt to measure the happiness of people around the world. Residents of the U.S. tend to rank around 15th among the 90 countries typically surveyed. In recent surveys, 85% of Americans say they are personally happy or very happy. Consistently, a number of countries with universal health care (such as Denmark and Norway) rank ahead of the U.S., and a larger number of countries with universal health care (such as Great Britain, France, and Germany) lag considerably behind the U.S. in happiness. On balance, research tends to show that countries reporting the greatest happiness have political freedom, not universal health care, in common.
The founders, for their part, already named—in the Bill of Rights and several other constitutional provisions, such as the guarantee of habeas corpus—the civil rights they thought necessary for the execution of natural rights. There is no evidence that they considered provision of health care necessary for realizing natural rights, though medical care certainly existed in the late 18th century and was valued, as it is today, for its capacity to prolong life. Indeed, there is no evidence that the founders considered governmental provision of food to be a civil right, though its connection to the maintenance of life was, then as now, more direct and more constant than that of health care.
Guaranteed legal counsel is a rare example of a positive government-funded service that has attained the status of a civil right linked to a natural right, but defense against criminal accusation has a uniquely direct connection to natural rights, since the positive action of government prosecution might deprive the accused of life or liberty. Here the citizen is threatened not by the vicissitudes of nature but by government itself, undoubtedly placing a stronger obligation on government to go the extra mile to respect his due process rights.
In other areas, despite attempts by liberals to translate economic "rights" into civil rights like freedom of speech, America has never enshrined this concept into law. If one were to follow liberal thinking on health care to its logical conclusion, the government would also be obliged to buy a newspaper company or television or radio station for anyone wishing to exercise freedom of the press; pay the costs of petition-gatherers for those who wish to exercise their right to petition the government; purchase firearms for those wishing to exercise their right to keep and bear arms; pay for a church, synagogue, or mosque, on behalf of those wishing to exercise their right to worship as they please. Of course, several of these "rights" would collide with the right of citizens not to be forced to pay for the propagation of beliefs not their own. But the contradiction would be no greater than that between a right to government health care and the natural right of citizens to enjoy the fruits of their own labor.
Even in latter days, this approach has generally not prevailed. In the 1980 case Harris v. McRae, the Supreme Court rejected the argument that the right to abortion translated into a positive government obligation to fund abortions for the poor (leaving aside the controversy over the right itself). Despite considerable effort in the 1960s and 1970s, welfare advocates failed to gain wide acceptance of the notion of government welfare payments as a fundamental civil right, and the landmark welfare reform act of 1996 departed still farther from that goal by turning federal welfare from an entitlement program into an annually-appropriated block grant replete with work requirements and time-limited benefits.
Rawls to the Rescue
Even though it is not possible to establish a right to health care on the basis of the American political tradition, liberals might try shifting the argument to a different, and vaguer, level. For example, they might argue on the basis of utilitarianism rather than natural right. If universal health care could be proven to produce the greatest good for the greatest number, it could be mandated in good conscience. Leaving aside the difficulty of asserting a "right" on the basis of utilitarian calculation—how can it be a right if the calculation can change?—John Stuart Mill's utilitarianism held that the "greatest good" could be defined by the degree to which the action enhanced freedom and individual development. He also argued that the only reason for government to use coercion on an individual was to prevent him from doing harm to another. Socialized medicine clearly does not pass those tests.
Another approach would be consistent with the liberal welfare-statism expounded by philosopher John Rawls (though he was criticized by liberals for not including health care on his list of basic rights). Imagine two people with identical life-threatening medical conditions. One has money, the other does not. Why should one live and the other die? Any reasonable person hidden behind Rawls's "veil of ignorance" would want government to ensure that he was not the one without medical care at the critical moment. For some disciples of Rawls, that by itself is enough to establish a kind of moral right.
But here liberals conflate two notions that are superficially complementary but actually distinct from a moral point of view: the duty to help others in mortal danger, recognized by doctors themselves in the ethics of their profession, and the right to forcibly extract help from others. The first is a noble code cultivated in a free society and accepted by free people who voluntarily take responsibility for their fellows. The second is a form of conscription in which some individuals forcibly commandeer the services and resources of others for what is, after all, fundamentally their own private benefit. In any event, the argument is disingenuous, inasmuch as liberals are not contending for equal access to lifesaving procedures; they are contending for guaranteed issue of the whole panoply of health services.
And the Rawlsian approach, virtually context-free, does not fare so well when it makes, as it eventually must, solid contact with mundane realities. Suppose, for instance, that without knowing in advance your station in life, you may choose either (a) a simple 99% probability of obtaining health insurance, or (b) an 85% probability of obtaining health insurance combined with higher quality of care if you receive it, significantly lower taxes, and less intrusive and less centralized government. It is far from clear that reasonable people would be in favor of (a) at all.
The great danger of health-care-as-a-right is that it threatens to supplant the American republic's key political principles. Accepting a positive government obligation to fund social services claimed as a matter of right would lead inexorably to government without limits. How could one fence off claims on government resources or demands for the exercise of government power, if the right to the pursuit of happiness, for example, became a font of positive economic rights? When applied to health care, this principle could easily lead to individual rights, traditionally understood, being eaten up by confiscatory taxation, health regimentation and rationing, and insurance mandates.
Although the right to health care is an article of faith among modern egalitarians, it does not square with equality as the founders understood it: an equality of natural rights, which led to equality under the law, consent of the governed, and the mandate that law be exercised for the common good, not the private benefit of the few. Yet health-care-as-a-right leaves little room for democratic debate or compromise—after all, the point of a right is to remove an issue from the realm of majority rule—and would mandate a wrenching economic and social dislocation in order to promote the private benefit of the 12% of Americans who do not have health insurance at any given time.
Practically speaking, a right to health care denies the nation an important element of flexibility in fashioning a response to health care problems. Sticking to the founders' sound general principles would actually leave policymakers with greater room for policy innovation.
A Conservative Solution
But it is not enough for conservatives to demonstrate that health care is not a right; they should take a much more assertive interest in health care policy, for three reasons.
First, many if not most of the problems with our health care system have been caused by bad government policy. Government has an obligation to fix its own mistakes. Second, conservative skepticism by itself is not politically tenable. Although Americans remain suspicious of a government takeover of health care, conservatives must offer some way to allay their concerns about the current system. Finally, the longer the issue remains unaddressed by sensible conservative policies, the more likely the Left will be to use it as a wedge for advancing socialism more broadly. It's like leaving a loaded pistol in a room of drunken pirates. No one knows when it will be used or who will use it, but it's clear that nothing good will come of it.
So how should conservatives begin constructing an approach to health care? They first ought to recognize that individuals exist in a social web of family, friends, co-workers, churches, and other associations. One of the great conservative insights is that civil society can often contribute to solutions to social problems because its institutions can act compassionately, possess strength beyond the capacity of individuals, and enjoy local knowledge beyond the capacity of big government. Conservatives need to find a role for civil society.
More generally, they need to promote solutions that openly treat the nation's fundamental principles as a resource. This would mean reducing arbitrary distinctions in the tax code, giving individuals more freedom, using market mechanisms to help restrain costs, guaranteeing that states have an important role, and insisting that Congress retain accountability for whatever it enacts rather than delegating its responsibility to executive agencies. And it means, in true conservative fashion, insisting that reform not make the perfect the enemy of the good.
But first, conservatives will have to prevail in the argument with the new president and his followers over whether health care is a right.