I pretty much categorically deny the entire idea of positive natural rights, but if you don't and you think there is a natural right to health care what would that mean? Julian Sanchez examines the idea
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Health Care as Distributional Right
August 24th, 2009
I’ve suggested before that the best version of progressivism—by which I mean, the most internally coherent version—would not include a distinct right to health care for competent adults as a moral or theoretical right, though it may in practice recommend that some degree of access to publicly provided or subsidized health care be afforded as a concrete or legal right in actual progressive societies. I want to try to cash that out a bit, because I’m curious how far self-identified progressives will agree that the account I have in mind does represent a clearer or more precise articulation of their values.
Just to reiterate a familiar point, to speak of a “right to health care” simpliciter presents some obvious difficulties, because “health care” consists of an array of heterogeneous goods and services that must, for the most part, be provided by others. These differ in cost, scarcity, and expected benefit to the recipient. Like other putative positive rights, a right to health care is different in an important respect from negative rights, such as the right to free speech—supposing we mean by this a right not to be coercively prevented from communicating with willing listeners. The speech right may be externally limited, insofar as it conflicts with other important interests that may be seen as trumping it in cases of conflict, as when, for instance, speech involves the disclosure of vital military secrets or the spread of malicious falsehoods that would wrongly destroy some private person’s reputation. But it is not internally limited in that, in principle, my exercise of the right does not use it up: It is not as though there’s a limited stock of social restraint, so that if I speak more, and you refrain from silencing my speech, society must squelch someone else’s to make up for it. Health care, or perhaps positive rights taken together, are not like this: When social resources are expended to satisfy one citizen’s claims, this generally reduces the stock of resources available to satisfy other similar claims.
One could argue that these are, in fact, more closely parallel than they first appear: The right to speech is bounded by other rights, which (depending on how you prefer to frame it) either trump the speech right in cases of conflict or, conversely, define the limits of the speech right. In the same way, any particular citizen’s right to health care is bounded by the equal right of other citizens to health care, perhaps along with other “primary goods” like education, food, adequate housing, and so on. Even if we want to think of it that way, practically speaking the natural way of conceptualizing the right when it comes to deciding what a particular citizen is actually entitled to is as a claim or share right against the stock of social resources, not—as with speech—as a “side constraint” right subject to certain exceptions. The question “how much health care and of what sort” arises as a matter of course, in the way the question “how much speech” does not. Assuming we cannot give everyone infinite health care, and that health care is one of a number of positive goods to which citizens are entitled, then any real-world attempt to cash out the right requires a determination of the share of social resources to which a claimant is entitled.
Now, to make this a bit more concrete, a thought experiment. (And just to preempt objections: I understand that this is far removed from the practical health care concerns of progressives; I’m shooting for a conceptual clarification, and not so deluded as to think the scenario I’m about to paint resembles our current situation in any important respects.) Suppose we have what I’m going to call a market egalitarian society. Suppose, in other words, that this is a society where economic life is generally market-based, but where a scheme of taxation and redistribution then ensures that all citizens have a fair share of economic resources, according to whatever conception of economic justice you think is correct. For the purposes of our example, suppose further that the correct conception seeks to neutralize to some extent the effects of bad luck, so that someone who is burdened with health problems, either congential or as a result of accident, may be entitled to a greater share of social resources by way of compensation. Also suppose that, unlike most social democracies, this market egalitarian society does not generally go in for direct government provision of goods, but instead, having ensured that everyone has their fair share of all-purpose resources—in other words, wealth and income—allows adults to secure these goods for themselves. Imagine that this is a generally affluent society, and in it there lives a Mr. Rich, who is as well off as anyone else—and perhaps, if this is compatible with your preferred conception of economic justice, economically better off than most. As he gets on in years, he is diagnosed with a serious condition that will shorten his life—though appropriate medical care can affect how much it is shortened. If necessary, according to your preferred conception and the specific facts of the case, his share of social wealth may be augmented through redistribution to compensate for this stroke of bad fortune.
Though he could expend some of his share on the appropriate medical treatments and be left with enough to maintain a perfectly decent quality of life, Mr Rich decides to use his resources in service of other projects: Perhaps he decides to travel to parts of the world he’d always wanted to see, or endow a library, or in other ways enhance the quality of his remaining years. As a result of this, suppose he reaches a point where he is no longer able to afford the medical treatments that would extend his life. Can he still claim a right against society to be provided with care? Or are his rights exhausted by his consumption of what, by stipulation, is his fair share of aggregate social resources? Can society fairly say: “We’ve given you what you had a right to already, and you opted against using it for health care”?
If we want to say that he is still entitled to care, then under the circumstances we must in effect say that he is entitled to more than his fair share of resources, which seems like something of a contradiction in terms. To avoid this contradiction, we might say that Mr Rich must not be permitted to expend his share on these other projects, but rather to devote it to his own health care. Put it differently: If we want to say that what Mr Rich has is specifically a right to health care, we have to be prepared to say that he is not just entitled to the cash value, as it were, of his share of social wealth, but only to certain particular goods on which it might be expended. This would justify saying that the market egalitarian society is badly constructed—that we must provide the good directly, rather than providing fair shares and letting people decide whether they want that good or others.
On what grounds might we say this? We have a couple of options. In the real world, as opposed to our thought experiments, it might just be that it is easier politically to sell a system of universal health care than the sort of naked redistribution contemplated in our market egalitarian society—that in the absence of these political constraints, that society is a perfectly fine model. There might also, of course, be other more pragmatic reasons to say the society should provide care directly instead of fair shares. Perhaps a national scheme of health care provision will enable each of us to get more bang for the buck than a scheme in which each of us takes our fair share to the health care market. There are also some obvious externalities to certain kinds of health care: Ensuring that I am treated for infectious diseases in a timely way makes it less likely that I will inflict these ailments on others.But let’s see if there are other routes to take that preserve some kind of special status for health care.
We might say that certain goods—among them long life and good health—have an objective value or priority regardless of what Mr Rich might think. This is, I think, the view of many religious conservatives who oppose assisted suicide, not merely because they worry that people will come under undue pressure to prematurely end their lives, but because they see life as sitting atop an objective, divinely ordained hierarchy of value, so that it is not up to us mortals to decide that our lives are no longer worth living. While it is certainly possible for a progressive to hold this view, it sits uneasily with other widely-held progressive value commitments, so let’s put that aside for the moment.
We might alternatively say that while Mr Rich is not necessarily wrong to value other goods above health at some margin–an extra painful week or two bought at great cost might genuinely be a less valuable use of his fair share than some alternatives available to him—he is likely to misjudge his own best interests, perhaps because he underestimates how precious those extra weeks or months will be at the end. Some similar thought presumably motivates the decision to provide the indigent with goods like food stamps rather than direct cash payments: Because poverty is often bound up with problems like alcoholism or substance abuse, we want to ensure that people will use social assistance to acquire goods that are in their own long-term best interests (and, of course, those of their children—an obvious complicating factor) rather than in self-destructive ways that may only increase their need for future public assistance. Even if we think Mr Rich is perfectly capable of making the relevant trade-offs, rendering this sort of argument inapplicable to his case, we might well think it applies to younger people facing the choice of which health risks to insure against. We frequently do see arguments of just this sort, and they are plausible enough on face.
This second option is clearly, in some sense, paternalistic, though since I’m doffing my libertarian hat for the purposes of this post, this does not in itself constitute an objection. I do, however, want to try to disentangle the different strands of justification here—to see how far the motivation for a right to health care is a function of premises having to do with economic justice, and to what extent there’s a paternalistic element. If we want to say that the market egalitarian society does not go far enough when it allocates to each citizen a fair share of economic resources, then allows them to make their own health care decisions, it cannot just be that we are worried about the distributional injustices. (An alternative: We might say that prudence is arbitrarily inequitably distributed, and so some degree of paternalism is in fact a component of distributive justice. I leave this suggestion by the wayside for the moment, though it might be interesting to follow up in a future post.) Decomposed into these separate elements, though, only part of the “right to health care”—the part consisting of a claim to one’s fair share of social resources—actually looks like a right of the familiar sort, which it’s up to the individual to claim, use, or waive according to his own best judgment.
We can try to squeeze the square peg into the round hole. We can say, perhaps, that my “total” self, conceived as the aggregate of all the temporal parts of my life, has a right that consists of a claim against both society and against any particular short-sighted time-slice of the whole-life self, to be prevented from squandering my share of social resources in ways that my future self might sorely regret. Maybe some analogy to the right against self-incrimination or the right to counsel in the criminal justice context could be attempted, but this seems a bit forced. While it does not seem exceptionally weird to say that I have a duty of prudence to my future self, the language of rights seems like a poor fit. It seems more plausible to say that, on the one hand, I have a right to some fair share of social resources, and on the other, that it is simply better if, for my own good, society constrains my enjoyment of that right by ensuring that I consume it in the form of health care than by frittering it away on ephemeral pleasures.
As I suggested at the outset, the upshot of these considerations—if we find them compelling—may be that an actual progressive society should recognize a legal right to health care, rather than a right to the cash value of one’s fair share. More precisely, this would be a right to one’s fair share of health care resources, rather than resources simpliciter. But if, as I also suggested, we reject the notion that health or longevity are inherently or objectively better than other goods people might want to secure with their just shares, then this is not because there’s a higher-level moral right to health care. Rather, the better account will say that the moral right is to one’s fair share, but that some mix of paternalism (which, again, I mean to use without necessarily pejorative connotations here) and other pragmatic considerations should be delivered in the particular form of health care.
Given my own priors, I expect that this whole long post will be seen by some readers as a sneaky and disingenuous attempt to get progressives to admit that they are paternalists after all, at which point I leap out from behind a bush and scream “Gotcha!” And probably there’s nothing I can do but say: “No, really, it isn’t.” I’m genuinely curious whether this is an account progressives regard as a theoretically adequate representation of their own commitments, and perfectly open to the possibility that I’ve missed some better alternative account. I will re-don my libertarian hat this far though: If this account does ring true, then to the extent progressives see themselves as continuing the liberal tradition, I assume they’re more comfortable with the social justice strand of the argument than the paternalist strand. With the market egalitarian model at one pole and a fully government-run health system at the other, I think it would be interesting to talk about what the intermediate systems might look like for different assignments of weight to each strand. Of course, even if I’m not waiting to jump out from behind a bush, presumably others are, so I won’t take it too personally if folks are loath to take up the frame.
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