The Rights Angle

The conseqences of a "right" to health care.

David Kelley from the January 1994 issue

President Clinton, who ran for office by attacking the hostile takeovers of the 1980s, is now proposing a hostile takeover of his own, a hostile takeover on a scale far beyond anything that Wall Street capitalists ever dreamed of, a hostile takeover of one-seventh of the nation's economy--the health-care industry.

The Clinton plan in its present form involves a massive increase in government control over physicians, insurers, employers, and--last but certainly not least--the patients who are supposed to be the beneficiaries of the plan. Most people will be forced to obtain their health insurance through purchasing cooperatives: government-backed monopolies that collect payments from consumers and set the terms on which medical providers can offer their services. Everyone will be forced to buy health care through these monopolies, with employers forced to pay the lion's share of the bill. Physicians, hospitals, and HMOs will be prohibited from dealing with patients directly; they will be forced to offer their services through the purchasing cooperatives, subject to highly restrictive rules.

What has brought us to this state of affairs? Socialism has collapsed in the Soviet Union. The nations of Western Europe are trying to trim back their welfare states, desperately looking for ways to privatize. Yet in this country we are on the brink of a massive increase in government subsidies and government controls. Why?

The full story is a long and complicated one, but the essential cause is simple. It is the assumption that if people have medical needs which are not being met, it is society's responsibility to meet them. In the current debate over health-care reform, universal access has become the unquestioned goal, to which all other considerations may be sacrificed. It is the one point on which the Clintons have declared themselves unwilling to compromise. The assumption is that the needs of recipients take precedence over the rights of producers--the rights of physicians, hospitals, insurers, and drug companies, as well as the rights of the taxpayers who are going to have to pay for it all. In other words, those with the ability to provide health care are obliged to serve, while those with a need for health care are entitled to make demands.

Indeed, it is often said that the need for health care constitutes a right. President Clinton campaigned with the slogan, "Health care should be a right, not a privilege." Opinion polls regularly show that the belief in such a right is widespread, even within the medical profession. If health care is a right, then government is responsible for seeing that everyone has access to it. It is this idea that has driven health-care policy for the past 30 years. A "right" to health care was granted to the poor through the Medi-caid program and to the elderly through Medicare. Now the Clinton administration proposes to create a universal entitlement and vastly to expand government control.

But there is no such right. The attempt to implement this alleged right leads in practice to the suspension of the genuine rights of doctors, patients, and the public at large. Indeed, the very concept of such a right is corrupt in theory.

Liberty vs. Welfare Rights

A right is a principle specifying something that 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. Because rights are entitlements, not privileges or favors, we do not owe anyone else any gratitude for their recognition of our rights. When we speak of rights, we invoke a concept that is fundamental to our political system. Our country was founded on the principle that individuals possess the "unalienable rights" to life, liberty, and the pursuit of happiness. Along with the right to property, which the Founding Fathers also regarded as fundamental, these rights are known as liberty rights, because they protect the right to act freely.

The wording of the Declaration of Independence is quite precise in this regard. It attributes to us the right to the pursuit of happiness, not to happiness per se. Society can't guarantee us happiness; that's our own responsibility. All it can guarantee is the freedom to pursue happiness. In the same way, the right to life is the right to act freely for one's self-preservation. It is not a right to be immune from death by natural causes, even an untimely death. And the right to property is the right to act freely in the effort to acquire wealth, the right to buy and sell and keep the fruits of one's labor. It is not a right to any kind of dowry from nature or from the state.

The purpose of liberty rights is to protect individual autonomy. They leave us responsible for our own lives, for meeting our own needs. But they provide us with the social conditions required to carry out that responsibility: the freedom to act on the basis of our own judgment, in pursuit of our own ends, and the right to use and dispose of the material resources we have acquired by our efforts. Liberty rights reflect the assumption that individuals are ends in themselves who may not be used against their will for social purposes.

We should consider what these liberty rights mean in regard to medical care. If we implemented them fully, doctors would be free to offer their services on whatever terms they chose. Prices in particular would be determined not by government fiat but by competition in a market. Patients would be free to choose the type of care they wanted and the particular health-care providers they wanted to see, in accordance with their needs and resources. They would be free to choose whether they wanted health insurance and, if so, in what amounts and for what risks.

Since this is an imaginary state of affairs, I cannot predict what mix of private practitioners, HMOs, and other sorts of health plans would emerge. But market forces would tend to ensure that patients would have more choices than they do now, that they would act more responsibly than many do at present, and that they would pay actuarially fair prices for health insurance--prices that reflect the actual risks associated with their age, physical condition, and lifestyle. No one would be able to shift his costs onto someone else. In a truly free market, finally, there would be no tax preference for obtaining health insurance through employers, so most people would probably buy health insurance the way they buy life insurance, auto insurance, or homeowner's insurance--directly from insurance companies. They would not have to fear that losing their job or changing jobs would mean losing their coverage.

That is what liberty rights--the classical rights to life, liberty, and property--would mean in practice. The so-called right to medical care is quite different. It is not merely the right to act--to seek medical care and engage in exchanges with providers, free from third-party interference. It is a right to actual care, regardless of whether one can pay for it. The alleged right to medical care is one instance of a broader category known as welfare rights. Welfare rights in general are rights to goods: a right to food, shelter, education, a job, etc. This is one basic way in which they are quite different from liberty rights, which are rights to freedom of action but don't guarantee that one will succeed in obtaining any particular good one may be seeking.

Another difference has to do with the obligations imposed on other people. Every right imposes some obligation on others. Liberty rights impose negative obligations: the obligation not to interfere with one's liberty. Such rights are secured by laws that prohibit murder, theft, rape, fraud, and other crimes. But welfare rights impose on others the positive obligation to provide the goods in question. Health care does not grow on trees or fall from the sky. The assertion of a right to medical care does not guarantee that there is going to be any health care to distribute. The partisans of these rights demand, with an air of moral righteousness, that everyone have access to this good. But a demand does not create anything. Health care has to be produced by someone and paid for by someone.

One of the major arguments offered by supporters of a right to health care is that health care is an essential need. What good are our other liberties, they ask, if we cannot get medical treatment for illness? But we must ask, in return: Why does need give someone a right? Fifty years ago, people whose kidneys were failing needed dialysis every bit as much as they do today, but there were no dialysis machines. Did they have a right to protection against kidney failure? Was Mother Nature violating their rights by making their kidneys fail without a remedy? It makes no sense to say that need itself confers a right unless someone else has the ability to meet that need. So any "right" to medical care imposes on someone the obligation to provide care to those who cannot provide it for themselves.