in Ethics

Rights and Health Care

So, a week or so ago, I posted a half-snarky status message on Facebook poking a bit of fun at a then-popular meme about health care reform. Jim Arnold, who was good enough to give me a job a couple of years ago, and Mike Taylor, a career diplomat, both took some exception to my way-too-brief remarks. Their criticisms were fair in light of what I’d posted. I think that there are important responses to both, but making that case requires going into a bit of detail about rights. Those of you who think that philosophy majors talk too much as it is (you know who you are) may want to click something else right now. And those of you who had to endure my philosophy classes can probably skim pretty quickly through much of this, as there’s not a whole lot here you haven’t heard before. The rest of you…eh, you’ve been warned.

One of the better ways of characterizing the nature of rights is laid out most clearly in an essay by the late American philosopher, John Arthur in a famous (well, famous for philosophy, anyway) paper responding to Peter Singer’s “Famine, Affluence, and Morality.” Arthur begins by outlining two different distinctions. First, he says, rights can be natural or contractual. The distinction is fairly straightforward: natural rights are those rights that people have simply by virtue of being persons, while contractual rights are those that I have by virtue of, well, a contract. So, for example, my right not to be killed unjustly is a natural right; it’s one that I have simply because I am the sort of being to which moral rules attach. My right to receive a paycheck from the University of Pennsylvania, on the other hand, lies in an agreement that I made with UPenn, one wherein I show up for work and they give me money.

So that’s one distinction. The other is between rights of noninterference and rights of recipience. These are exactly what they sound like. A recipience right is one that entitles me to something. A noninterference right is one that simply allows me to do as I wish free from your, well, interference.

The two sets of distinctions result in four possible combinations. Arthur calls natural rights of noninterference negative rights. And he calls contractual rights of recipience positive rights. He doesn’t bother to give contractual rights of noninterference a name, because he says we don’t need these. We already have a full set of noninterference rights just by virtue of being persons. It’s silly to think you need to contract for what you already have. (This, for those of you who remember your American History, is the argument that Madison initially raised to creating a Bill of Rights: why write those things into our contract when you already have them?) Oddly, Arthur more or less skips over any real discussion of natural rights of recipience, neither giving them a name, nor offering much of an argument for whether or not they actually exist. This is no small omission; whether or not these things exist is at the bottom of pretty much all disputes between modern and classical liberalism (i.e., between “progressives” and libertarians). I’m just going to dub natural rights of recipience “progressive rights,” mostly because that’s faster to type than “natural rights of recipience.”

Okay, so we have these three categories of rights. The question, then, is this (former students should start reading again here): If health care is a right, what kind of right is it?

Let’s start with the obvious. It’s clearly not a negative right. Those, after all, are noninterference rights. I fill those by doing nothing. Even as I speak, I’m fulfilling billions (6+ at last count) of negative rights simply by virtue of the fact that I’m not out bludgeoning one single person. Look at that! Six billion plus instances of respecting the right not to be bludgeoned! This rights stuff is easy!

So how about a slightly harder one? Is it a positive right? The answer seems to be yes, at least for some classes of people. If you’re British (or Canadian or French or lots of other nationalities) then you have a positive right to health care. That’s because it’s part of the general social contract in your nation. Similarly, if you belong to one of four categories of people in the U.S., you have a positive right to health care. Active duty military personnel get free health care. Many veterans do, too (though not all veterans, and it applies mostly for problems that are connected to service). And if you’re poor, you have a positive right to health care; that’s what Medicaid does. Or if you’re not poor, but don’t die for long enough, you’ll also get health care; that’s what Medicare does. You may also happen to have a positive right by virtue of your contract with your employer, too.

But if you don’t fall into one of those categories, it’s simply not true that you have a positive right to health care. Remember, positive rights are contractual. Clearly there is not in fact already a contract that guarantees health care rights to all Americans. If there were, we wouldn’t be having all these arguments. You might argue that there ought to be such a contract. That’s reasonable enough. But if that’s your position, you owe some sort of an argument — some set of reasons for believing your claim. And note that, if you’re trying to argue that there ought to be a positive right to health care, you can’t justify that claim by an appeal to rights. That would simply beg the question (fancy philosophese for “arguing in a circle,” but a way cooler phrase to drop at cocktail parties).

So, if you’re going the health-care-is-a-right route, your best bet is probably to argue the claims as a progressive right. That means two things. First, you have to demonstrate that there is such a thing in the first place. I made such an attempt a while back (God, that’s four-and-a-half years old now.) I’m no longer convinced that that argument works. At the very least, it needs a lot more development. I didn’t properly appreciate (or account for) the various public choice problems inherent in government programs. I don’t think it’s a deal-breaker (I’m not an anarchist, or at least not an anarchist of that sort). But I do think that a consequentialst account has to give serious consideration to the possibility that sometimes government is less efficient than some market failures.

Once that’s done, you have to explain why it is that you’re only interested in fulfilling those rights in certain parts of the world. This is the point I was raising (not very clearly) in my snarky post. If you think that health care is a natural right of some sort, then it’s one that applies to every single person simply by virtue of their being persons. Which means it’s not 46.5 million Americans whose rights are being violated. The number is more like 4 billion. And a lot of that 4 billion are in need of far less expensive stuff. Some mosquito nets, a bit of DDT, bleach, and some penicillin would go a long way toward meeting the health care needs of much of the world. That stuff is insanely cheap. In fact, here’s a sobering statistic: in 2005, almost 5/6 of the world’s population lived on the equivalent of $10 or less per year.

Look pictures! Really depressing pictures.

Look pictures! Really depressing pictures.

Now I believe that the most optimistic version of the health care bill has it rolling in at $900 billion over 10 years. That’s about $90 billion per year. Divide that by the 5.15 billion people living on less than $10 per day, and you’re looking at over $17 per year each. You could very nearly triple the standard of living for 5/6 of the world’s population for what the health care bill will cost. Think that wouldn’t go some way toward fulfilling a whole lot of those negative rights of recipience for all those people? And, if it’s a natural right, nationality makes no difference. After all, it’s just as wrong for me to bludgeon non-Americans as it is Americans. If you’re talking natural rights, location matters not at all.

This is not to say that I think anyone should do this. Only that, once you start talking about natural rights, you have to explain why you’re more interested in helping out a bunch of relatively wealthy people (b/c remember, the poorest Americans already get free or heavily-subsidized health care coverage via Medicaid) while ignoring the truly poor. I think it’s going to be a real problem for anyone trying to make a case for health care as a progressive right.

Perhaps the bigger worry, though, is that one would also need to explicate what it really means to say that one has a natural right to receive health care. The problem is that, even though we use the term “health care” as if it had a single unified meaning, in fact, it really describes a basket of goods rather than a unitary good. That is, unlike, say, the right not to be bludgeoned (which has a pretty concrete meaning), “health care” refers to a bunch of different possible things. In the 19th C, “health care” meant a barber with a really sharp razor and all the leeches you could fit on your torso. By the 1950s, it meant penicillin and polio vaccines. In the 199os, it meant kidney transplants and chemotherapy. But what does it mean today? Does the right to health care include the right to participate in Pfizer’s latest drug trial? Even if that costs $3784397234392743 (roughly)? What about in by 2020? Bionic eyes? Cloned replacement parts?

Even trickier: if “health care” has no fixed meaning, then what does that say about our rights? Does it make sense to say that we have a set of ever-expanding rights? And if there are limits to the health care rights people have (if we’re not going to pay for the drug trial, say), then how should that be decided?

Now obviously there are answers to these questions. But my worry is that once we’re at the point of sitting down and trying to delineate exactly which items in the health care basket get included, we’ve probably moved back to talking about a contractual rather than a natural right. At which point one also needs some argument other than “it’s a right” to justify why it is that we ought to make this particular contract. Indeed, one would need to explain why this is the best use we can make of (relatively) scarce resources.

For those of you who actually made it this far, I’d ask you not to take any of this as either an endorsement or rejection of any particular health care proposal. I’m genuinely undecided. I sympathize with the project, but I worry whether it’s possible to  instantiate it in a way that makes things better. And I’m somewhat more skeptical that anything currently on the table resembles any such possible instantiation. Still, this post is actually about a philosophical project rather than a public policy one. Mostly, I’m skeptical that rights language is an appropriate way to discuss health care. I’d be interested to see such a defense. Any takers?

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