Healthcare Is Not A Right

I have been meaning to write something about this for some time, but was distracted by work.  Since the healthcare debate has not been fully resolved, notwithstanding passage of the Democrats’ monstrous and very unpopular healthcare bill, I thought I would take the opportunity of a lull in work to write up my thoughts on the argument that “healthcare is a right.” 

A standard example of this framing can be found in a June 2009 post on Huffington Post, in which Senator Bernie Sanders declared that healthcare is a right, not a “privilege,” and analogized the struggle for recognition of this right to the civil rights movement and the struggle for women’s rights.  The late Senator Ted Kennedy similarly described “the cause of my life . . . as ‘guarantee[ing] that every American . . . will have decent, quality health care as a fundamental right and not just a privilege.'”  Indeed, Sen. Kennedy would apparently have included within this “right” insurance coverage for the uninsured, subsidies for some, making it illegal to deny coverage due to preexisting conditions, a prohibition on “the practice of charging women higher premiums than men, and the elderly far higher premiums than anyone else,” and allowing “children be covered by their parents’ policy until the age of 26.”

This is a perversion of the notion of “rights” as we in the U.S. have historically defined the concept since the inception of the country.  Let’s begin with the Constitution itself.

 The Constitution itself generally speaks to delineated powers granted by the people to the federal government.  For example, Article I section 8 authorizes Congress to tax, borrow, regulate interstate commerce, coin money, declare war, and so on.  This is in keeping with the general concept at the time of limited governmental powers in the absence of authority granted by the people.  I can find no support in the original Constitution for the concept that government-provided, -subsidized, or -regulated healthcare is a fundamental right guaranteed in the Constitution.

Next we turn to the Bill of Rights, added by way of amendment in 1791.  The important thing to note about these Amendments is that they are generally described as rights that the government may not intrude upon.  They are not described as obligations from the government — and by extension, from the people — to provide anything to anyone.

Amendment 1 — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Amendment 2 — “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Amendment 3 — “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Amendment 4 — “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Amendment 5 — “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Amendment 8 — “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

None of these enumerated rights requires (or even authorizes) the government to give anything to anyone as a matter of right.  To the contrary, each acts as a limitation on the government’s ability to take things from its citizens. 

For example, the First Amendment does not guarantee that everyone will have a forum or an audience for the exercise of free speech.  If someone wants to start a paper and exercise the right to freedom of the press, it is that person’s responsibility to acquire the means for producing a paper and attracting a readership.  Similarly, the First Amendment does not require the government to build anyone a church in which to freely exercise their religion.  If you can pay for it, you can build the most elaborate temple within your means; but if not, too bad.  In short, the First Amendment prohibits government interference, but it does not promise any government assistance. 

The same is true for the Second Amendment.  As the Court held in McDonald v. Chicago, the right to keep and bear arms for self-defense is an individual right guaranteed by the Constitution.  But if you are poor, vulnerable, and at risk of physical violence, it is pretty clear that the Second Amendment does not provide you a right to receive a government-issue firearm at no expense to you.  The Amendment merely secures your right to keep and bear arms from certain forms of intrusion by the government.  It does not require that someone else pay to ensure that you can afford to exercise that right by purchasing a firearm.

And so on, for the Third, Fourth, Fifth, and Eighth Amendments.  Each is directed at limiting governmental interference with or the seizure of private property, or securing rights against the risk of governmental intrusion, not conferring a benefit on individuals at taxpayer expense.

The Sixth and Seventh Amendments do confer something that could be described as a positive right — the right to have something provided to you — such as the right to a jury trial and the right of criminal defendants “to have the Assistance of Counsel for his defence.”  However, the former is not properly characterized as a benefit, since most would rather go about their lives without ever needing a jury trial.  The right to a jury is better characterized as the right not to have the government interfere with property or liberty rights without first providing a trial by jury (under certain circumstances). 

And while the  right to Assistance of Counsel has been construed to include the right to a state-paid attorney, the right to state-appointed (and paid) counsel is also unique.  Before one exercises the right to seek state-appointed counsel, one must first be charged with a crime.  Therefore, the right to counsel is not a benefit conferred on an individual by virtue of citizenship; it is a right not to have the government interfere with property or liberty rights (again under certain circumstances) without first providing the targeted individual with the assistance of counsel in defending against the government’s action.

The Civil Rights Act of 1964, to which Sen. Sanders alludes, also concerns itself primarily with allowing the individual freedom of action.  No one is guaranteed or granted a job.  The law merely provides that one may not be denied a job for limited reasons that are deemed to be impermissible.  Similarly, the “struggle for women’s rights” has never been considered by those in the mainstream to be seeking a right to any guarantees, just equality of opportunity. 

Thus, the rights enshrined in the Bill of Rights and Civil Rights Act limit the government’s authority over citizens and their actions.  They do not require the government to give anything to citizens (except as part of the system for adjudicating civil and criminal matters).  And they certainly do not require the government to give anything to one set of persons (recipients of services) that is paid for through money extracted from another set of persons (taxpayers).

If viewed from the perspective of the Bill of Rights or the other commonly accepted “civil rights,” any “right to healthcare” would simply be the right of citizens not to have the government unreasonably intrude on the ability of citizens to receive (or refuse) whatever healthcare services they wish, wherever they wish, and whenever they wish, at their own expense.

The “right to healthcare” as envisioned by Sens. Sanders and Kennedy is a very different animal. Such a “right” would require that money be taken from taxpayers and be used to pay for the healthcare services provided to another, partially overlapping, set of persons.  Direct subsidies would be a direct “payment” by taxpayers to the subsidized.  Making it illegal to deny coverage due to preexisting conditions is an indirect subsidy, either by taxpayers or those healthy enough to otherwise obtain health insurance.  A prohibition on “the practice of charging women higher premiums than men, and the elderly far higher premiums than anyone else,” has nothing to do with traditional notions of discrimination.  Women pay more than men, and the old pay more than the young, because their healthcare needs and expenses are greater.   If you equalize (or limit differences in) insurance rates between these groups, one by definition subsidizes the other.

Most pernicious of all, these wealth transfers would be enshrined as an inalienable right of the person receiving the funds to have them taken from another and given to the recipient.  This would be a fundamental change in (i) the traditional concept of civil rights, (ii) the traditional relationship between government  and citizens, and (iii) the traditional relationship among citizens that should only be enacted, if at all, by constitutional amendment. 


Published in: on July 13, 2010 at 2:00 pm  Leave a Comment  

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