Health Care as a Right

I recently wrote a paper about the MA health plan. Part of that paper included exploring whether health care is a right... It's a topic I've struggled with because while I'm all for everyone having health care, I don't necessarily believe that it is a right, given certain legal arguments that will be traced out below. It's a tough one to resolve, so here's the start of an argument..............

Some proponents of Massachusetts’ health care reform claim that health care is a right, and therefore Chapter 58 is appropriate and justified, despite any economic issues. There are two points of contention with this assertion: Is health care a right, and if it is, has the Massachusetts legislature protected this right with Chapter 58? Some proponents further argue that regardless of rights language, we have a moral obligation to provide health care to those who cannot afford it. Whether health care is a right or moral obligation is a long-fought and storied debate. For purposes of discussion of Chapter 58, I will simply highlight some arguments.

First, a distinction must be made: human or civil rights are not necessarily the same as legal rights. In the American legal system, rights are treated with great deference, and therefore, a statutory or judicial declaration that health care is a right carries tremendous weight and imposes a duty on the government for protection and support. In his seminal work on the right to health care, Mortal Peril: Our Inalienable Right to Health Care?, Richard Epstein described the countervailing view against health care as a right. Negative rights are those that require noninterference, whereas positive rights require a duty from another individual. Health care is a positive right, and as such, is not fundamental.

There is an argument that health care should not be a right because it is not justiciable.[1] However, courts have looked at similar issues, which could shed light on the judicial analysis in recognizing a health care as a fundamental right. In Washington v. Glucksburg, 521 U.S. 702 (1997) the Supreme Court articulates a test to determine if a right is fundamental. The right must be “carefully described,” deeply rooted in this Nation’s history and tradition, and implicit in the concept of liberty.[2] In Abigail Alliance v. von Eschenbach, 378 U.S. App. D.C. 33 (2007), cert. denied, ­­­­­­­­­­­­­­­128 S.Ct. 1069 (2008), the District of Columbia Circuit court sitting en banc relied on Glucksburg to strike down arguments that terminally ill patients had a fundamental right to experimental drugs. The dissenting judge attempted to root the right in the due process clause of the Fifth Amendment. The court declined to address whether “access to medicine might ever implicate fundamental rights,” and the Supreme Court denied certiorari on the case.
Regardless of whether health care is a right, people argue that there is a moral obligation for the United States to provide health care to all residents. This argument is usually supported by pointing to international declarations, laws of other countries, inferences from American history, and emotional appeals.

International declarations, which the United States have supported, assert every individual’s human right to health care. For example, the 1948 Universal Declaration of Human Rights, drafted by a committed chaired by UN ambassador Eleanor Roosevelt states:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.[3]

The 1996 International Covenant on Economic, Social and Political Rights states:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.[4]

Each of these documents was accepted by the United Nations General Assembly, and each has been signed by the United States.[5]Proponents of the provision of health care as a moral obligation or right also frequently point out that the United States is the only industrialized country that does not offer universal care of some sort to its citizens, despite public support for a century.[6] Proponents rely on the moral values, justice, and equality upon which our society was built to support their claim.[7] Following this moral compass, there have been a number of U.S. presidents and lawmakers who have tried to implement health care reform on a federal level. Among them are Franklin D. Roosevelt, Harry S. Truman, John F. Kennedy, Lyndon B. Johnson , Edward Kennedy, and Bill and Hillary Clinton.


[1] Puneet K. Sandhu, A Legal Right to Health Care: What Can the United States Learn from Foreign Models of Health Rights Jurisprudence? 95 Calif. L. Rev. 1151, (2007)
[2] Roy G. Spece, A Fundamental Constitutional Right of the Monied to “Buy Out Of” Universal Health Care Program Restrictions Versus the Moral Claim of Everyone Else to Decent Health Care: An Unremitting Paradox of Health Care Reform? 3 J. Health & Biomed. Law. 1, (2007).
[3] Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc A/810 (Dec. 12, 1948).
[4] International Covenant on Economic, Social, and Political Rights, G.A. res. 2200A, 21 U.N. GOAR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (Mar. 23, 1976).
[5] http://www2.ohchr.org/english/bodies/ratification/3.htm
[6] Tom Daschle, Critical: What We Can Do About the Health-Care Crisis (Thomas Dunne Books 2008) (2008).
[7] Tamara Friesen, The Right to Health Care, 9 Health L.J. 205 (2001).