The Rights Angle

The conseqences of a "right" to health care.

David Kelley from the January 1994 issue

(Page 2 of 3)

If I have such a right, some other person or group has the involuntary, unchosen obligation to provide it. I stress the word involuntary. A right is an entitlement. If I have a right to medical care, then I am entitled to the time, the effort, the ability, the wealth, of whoever is going to be forced to provide that care. In other words, I own a piece of the taxpayers who subsidize me. I own a piece of the doctors who tend to me.

The notion of a right to medical care goes far beyond any notion of charity. A doctor who waives his bill because I am indigent is offering a free gift; he retains his autonomy, and I owe him gratitude. But if I have a right to care, then he is merely giving me my due, and I owe him nothing. Thus if others are forced to serve me in the name of my right to care, then they are being used regardless of their will as a means to my welfare. The very concept of welfare rights is incompatible with the view of individuals as ends in themselves.

The difference between charity and rights is very well understood by the advocates of a right to health care. One of their main arguments for using the language of rights is that it removes the alleged stigma associated with charity. A right is something for which you don't owe anyone any gratitude. But notice the contradiction here. On the one hand, the advocates of this right argue that many people cannot provide for themselves, and are thus dependent on society--i.e., on other individuals--for their medical care. On the other hand, they insist on using the concept of rights to disguise the fact of dependence, to allow the recipients of government subsidies to pretend that they are getting something they earned.

It is also worth noting that the Supreme Court has never recognized a constitutional basis for any welfare right, including the right to medical care. The Court recognizes that the concept of rights embodied in our legal system is the concept of liberty rights. Welfare rights are a product of later movements to expand the role of government beyond its original conception. To appreciate the significance of this point, consider the following comment from an advocate of the right to medical care, William J. Curran, writing in the New England Journal of Medicine in 1989: "If such a right were recognized [as part of the Constitution], legislatures and public agencies would be required to provide access to health care. The defense could no longer be used that the legislature provided no funds for such services." In other words, if there actually were a constitutional right to health care, then any individual could bring suit to force the government to institute health-care programs and impose taxes to pay for them.

Effects of a Right to Health Care

No matter how a right to health care is implemented, through the courts or through an act of Congress, the results will be the abrogation of liberty rights. As with money, bad rights drive out good ones. Let's review the major consequences of implementing a right to medical care. I am going to use illustrations from our current situation, but these consequences follow inevitably from any approach: single payer, managed competition, or whatever.

To begin with, of course, the government has to tax some people to pay for medical subsidies offered to those it considers to be in need. So the first consequence of implementing a "right" to medical care is forced transfers of wealth from taxpayers to the clientele of programs like Medicare and Medicaid. And this inflates the demand for health-care services. It is possible that some of the wealth taken from taxpayers would have been spent on health care anyway. But offering free or heavily subsidized care to the indigent is inevitably going to increase overall use of the health-care system.

Figures from the early years of the Medicaid program indicate the vast increase in demand that can result. According to a Brookings Institution study, in 1964, before Medicaid went into effect, the non-poor saw physicians about 20 percent more frequently than the poor; by 1975, the poor were visiting physicians 18 percent more often than the non-poor. In 1963, among those with incomes under $2,000, there were only half as many surgical procedures as among those with incomes of $7,500 or more; by 1970, the rate for low-income people was 40 percent higher than for those with middle-class incomes. When Medicare was instituted in 1966, the House Ways and Means Committee estimated that by 1990, allowing for inflation, the program would cost $12 billion; the actual figure was $107 billion. (See "The Medicare Monster," January 1993.)

The cost explosion leads to the second major consequence of implementing a "right" to medical care: restrictions on the freedom of health-care providers. During the debate over health-care policy in the 1960s, proponents of Medicare and Medicaid assured doctors that they wanted only to pay for indigent care and had no intention of regulating the profession. Abraham Ribicoff, the Kennedy administration's first secretary of Health, Education, and Welfare, said, "It should be absolutely no concern to a physician where a patient gets the money."

But, of course, the surge in demand for medical care led to rapid price increases along with abuses of the system by clients of the government programs as well as by unscrupulous doctors and hospitals. These problems had to be addressed somehow, and the result was a growing web of controls: Professional Standards Review Organizations, Diagnosis-Related Groups, restrictions on balance billing, utilization reviews, certificates of need. As Nixon's undersecretary of HEW, John G. Veneman, said in 1971, "In the past, decisions on health care delivery were largely professional ones. Now the decisions will be largely political." The effects of the labyrinthine system of controls have been described very well by Dr. Maurice Sislen: "A huge, complex, policing system has taken the place of what used to be the doctor's responsibility to his patient. Probably only a practicing physician can fully appreciate the magnitude of the economic waste and moral degradation involved."

A third major consequence of implementing a right to health care is the increased burden imposed on consumers of health care--the ones who were originally not in need of government subsidies. As taxpayers, of course, they have to pay for all the programs. But as consumers, they are also affected by all the market distortions that these programs create. Everyone pays the higher prices caused by the inflation of demand for medical services, together with the increased costs of regulation and paperwork. As people are priced out of the system, they are forced into managed care systems that limit their choices of doctors.

Health insurance stipulations by states raise the cost of insurance, and discourage employers from hiring certain kinds of workers. For example, "community rating" laws require insurance companies to offer policies for the same price to all people, regardless of age, lifestyle, or physical condition. Since the actual risks depend on these factors, community rating means that the young must pay higher prices to subsidize the elderly, the well must subsidize the sick, and those with healthy lifestyles must subsidize those with unhealthy ones. As an indication of the kind of subsidy involved, community rating in New York nearly tripled the cost of insurance for 30-year-old males.

Yet another consequence is a growing demand for equality in health care. If something is a human right, after all, then it should be protected equally for all persons. Our system is based on the idea of equality before the law. If we plug into this system the idea that we all have a legal right to some good such as health care, the natural inference is that we all ought to receive that good on a more or less equal footing. Indeed, in a 1989 survey for the Harvard Community Health Plan, 90 percent of the respondents said that everyone should have "a right to the best possible health care--as good as a millionaire." Here's another example, a statement by Horace Deets, the executive director of the American Association of Retired Persons: "Ultimately, we must recognize that health care is not a commodity. Those with more resources should not be able to purchase services while those with less do without. Health care is a social good that should be available to every person without regard to his resources." This idea has worked its way into the Clinton plan, which declares that "equality of care" is among "the ethical foundations of health reform" and states that "the new health-care system...should avoid the creation of a tiered system."

To summarize, then, a political system that tries to implement a right to health care will necessarily involve: forced transfers of wealth to pay for programs, loss of freedom for health-care providers, higher prices and more restricted access for all consumers, and a trend toward egalitarianism. These consequences are not accidental. They follow necessarily from the nature of the alleged right.

The Clinton Plan