Is Quality Health Care a Fundamental Right?

Tibor R. Machan

In a famous essay, published in the July 27 2009, issue of Newsweek magazine, the late Senator Ted Kennedy reiterated a message with which he has come to be very closely associated. As he wrote in that essay, "This is the cause of my life. It is a key reason that I defied my illness last summer to speak at the Democratic convention in Denver—to support Barack Obama, but also to make sure, as I said, 'that we will break the old gridlock and guarantee that every American…will have decent, quality health care as a fundamental right and not just a privilege.' For four decades I have carried this cause—from the floor of the United States Senate to every part of this country. It has never been merely a question of policy; it goes to the heart of my belief in a just society. Now the issue has more meaning for me—and more urgency—than ever before. But it's always been deeply personal, because the importance of health care has been a recurrent lesson throughout most of my 77 years."

The idea that health care and other welfare measures are fundamental rights everyone has goes back a couple of centuries. I believe it was the English philosopher T. H. Green who first articulated it (in his "Lecture on Liberal Legislation and Freedom of Contract"):

"We shall probably all agree that freedom, rightly understood, is the greatest of blessings; that its attainment is the true end of all our efforts as citizens. But when we thus speak of freedom, we should consider carefully what we mean by it. We do not mean merely freedom from restraint or compulsion. We do not mean merely freedom to do as we like irrespective of what it is that we like. We do not mean a freedom that can be enjoyed by one man or one set of men at the cost of a loss of freedom to others. When we speak of freedom as something to be so highly prized, we mean a positive power or capacity of doing or enjoying something worth doing or enjoying, and that, too, something that we do or enjoy in common with others. We mean by it a power which each man exercises through the help or security given him by his fellow-men, and which he in turn helps to secure for them. When we measure the progress of a society by its growth in freedom, we measure it by the increasing development and exercise on the whole of those powers of contributing to social good with which we believe the members of the society to be endowed; in short, by the greater power on the part of the citizens as a body to make the most and best of themselves."

The position Green lays out in this passage is the foundation underlying the late senator's view on health care as a fundamental right. Green himself was what came to be referred to as a right wing Hegelian, although this particular passage is actually more aligned with left wing political theory. In that theory human beings are viewed as prisoners of their circumstances. The poor are unable to rise from poverty unless they are liberated by the government or state, unless they are supplied with the tools by which they can escape their poverty, and the supplier of those tools are seen as governments because they are in possession of the power to make things happen. Certainly civilians, too, can help with this but unless they are forced to make the required provisions, the freedom to which the poor are entitled will be a matter merely of privilege based on generosity or philanthropy.

The crucial premise in all this is that unless people are moved by powerful agents out of their unfavorable circumstances, they will remain there, period. The poor, disadvantaged, sick, underprivileged, and so forth have no power of their own. Protecting their right to liberty as envisioned in classical liberal or libertarian political theory, as laid out by John Locke and the American founders, just won't help them at all. They need provisions, support, from other people. Since that is their only means of escape, they must receive it from the only source capable of securing it for them, namely, the government.

When the American founders spoke of government's task to secure the rights of the citizens, they had in mind the negative rights, rights not to be interfered with, the rights Green finds inadequate to the task at hand. As Green put it, by the right to freedom or liberty "We [meaning he and his allies] do not mean merely freedom from restraint or compulsion." No, "We mean by it a power which each man exercises through the help or security given him by his fellow-men, and which he in turn helps to secure for them."

Yet not even this tells the full story because it suggests that such power may be given to those who require it, as a matter of the free choice of those who can give it. No, if it is a proper fundamental right, it must be secured from those who can secure it as a matter of a legal mandate, just as the right to negative liberty must be. It isn't a matter of other people's generosity or kindness that they must respect one's right to one's life, liberty and property and neither is this so concerning their right to such provisions as health care, not at least in Green's political thought. So, then, it isn't optional but mandatory that positive rights be protected; so governments or whatever agency is responsible for upholding the laws of the land may use force to make sure that these rights are secure. And for Green and his followers, including the late Senator Ted Kennedy and President Barrack Obama the same thing holds true about positive rights such as the supposed right to health care.

Now the big problem with this is that while respect for another's right to life or liberty requires nothing more from someone than to abstain from killing (or assaulting or kidnapping) that individual while respecting the right to, say, health care requires actual work from health care professionals or those who will be required to pay their salaries. And that amounts to placing these providers into involuntary servitude.

However valuable it is for those who need it to receive health care or insurance, it is impermissible to treat those who can provide such care and insurance to be coerced into doing so. The protection of positive rights, so called, amounts to nothing less than a policy of forced labor--not different from slavery, actually--something that is completely wrong, entirely impermissible, regardless of how much others may benefit from it, how urgent their need is for it. And it also misunderstands human nature since it denies that the poor can escape poverty on their own initiative. That is plainly false.