By Richard Pimentel

"It is certainly reasonable-if also cruel and selfish-for true conservatives to oppose health care reform if they do not believe that access to health care is a fundamental right and that people who cannot afford to pay their own way should be left untreated. For most people, however, access to good health care at a reasonable cost is central to the common good…."

The excerpt above is from an editorial titled, "Public option the only way" in the Standard Times from New Bedford, MA. The public option is advocated by the editor of the newspaper but attention is drawn to the commonly used phrase “access to health care is a fundamental right.” In my previous article, “Rights and the Health Care Debate,” I examine the philosophical justification for rights in general. I then apply the notion of rights to the health care reform debate and specifically to the question of whether universal access to health care is truly a fundamental right. With health care reform moving to the forefront of American politics, it is important to examine whether this is truly a right. Whether health care is a right or a good that should be provided, this distinction needs to be established and plays an important role in rights talk (and, more importantly, in determining legislation). Rights are intended to protect freedoms that are enshrined in laws and advanced by the rule of law in a liberal democracy. For this reason, the Bill of Rights is fundamental to our society. Laws have been passed to protect the freedoms expressed in the Bill of Rights.

Keeping in mind the definition of rights according to the Stanford Encyclopedia of Philosophy, appling the concept of rights to various human problems helps answer whether health care legislation is appropriate or not. One way to look at this is to see how rights can be classified. One traditional distinction is between negative and positive rights. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. For instance, a right against theft is a classic example of a negative right, while a right to welfare assistance is a positive right. Rights such as freedom of speech and freedom of worship are negative rights because these entitlements are protected via non-interference. In other words, the government of the United States cannot prohibit the free exercise of these freedoms. Rights such as the right to counsel is a positive right because a service is provided to a defendant. Although this distinction is not held by all philosophers, it is a useful distinction when looking at health care. If a right to health care can be justified, would it be a positive or negative right? If the modern political notion of universal health care is utilized (i.e. obligatory provision of medical care at no cost and/or affordable cost), then this right would be considered a positive right because goods and services are provided to the rights holder. If this last statement is correct, another important concept regarding rights must be considered: individual liberty.

If there is a fundamental right to health care, then the government would appear to have an obligation provide access to everyone. A positive right such as this seems to place an obligation upon the government to provide the proper goods and services in order that this right be fulfilled. However, there are another considerations. Individual liberty is one. David Kelley from the Atlas Society, a web site focused on Ayn Rand’s objectivism, spoke on this topic during the Clinton presidency when health care reform was a hot topic. He emphasized individual liberty and its relationship to rights. Kelley defines rights as “a principle that specifies something which an individual should be free to have or do. A right is an entitlement, something you possess free and clear, something you can exercise without asking anyone else’s permission.” Further on, Kelley argues that the Founding Fathers invoked fundamental rights as liberty rights, because they protect the right to act freely. For instance, the Declaration of Independence states that we have the right to pursue happiness. What does this mean? The government is obliged to guarantee the freedom to pursue happiness, not provide it. It is the individual’s responsibility to achieve it. Moreover, Kelley argues that liberty rights function “to protect individual autonomy.”

Not all agree with Kelley’s objectivist view of rights but he raises an important point when considering the right to health care. If health care is a right then this imposes some obligation upon others. Rights impose obligations upon others negatively (i.e. others cannot impede the rights holder from pursuing their rights) and positively (i.e. others must provide the adequate pursuit of rights to the rights holder). As a right, health care would impose a positive obligation upon others in just the way described above. For instance, mandated health care needs the following components: government sanction, medical providers, and taxpayers. The government is obligated to provide medical care to all by legislating and subsidizing this obligation. The revenue needed to fund this will come from the taxpayer. The medical care will be supplied by the providers who will be obligated to provide their services, albeit through different channels. Nonetheless, an obligation is imposed upon everyone, which is characteristic of rights. On the other hand, what if one of the necessary components–specifically medical providers and taxpayers–perform their part involuntarily? Someone can involuntarily not interfere with another’s freedom to worship or freedom to assemble but the key point here is “not interfere.”

A right to health care seems not be a negative right; it is a right that imposes upon others the obligation to provide goods and services. The question that needs to be asked is whether this harms individual liberty. There will be different answers to this but the answers must be pursued not assumed. An expanding catalogue of rights seems to exist in this country. Rights are quickly invoked without any further thought or justification. This is a dangerous trend that restricts understanding and compromise when discussing rights and this trend has affected the “right to health care” talk. This does not mean that a right to health care is not justified, it just means that sound reasoning, not sound bites and ad-hominem attacks, is necessary to decide this issue.