The intense debate about the Affordable Care Act and the “repeal-and-replace” effort currently underway in Congress by the Republican Party majority harbors an elemental question at its foundation: Is health care a human right?
Generally speaking, I think it safe to say Democrats would answer yes to that question, Republicans no. It’s a stark dividing line across which scores of different philosophical arguments and assumptions have been proffered by equally passionate advocates on either side.
But I think it is fundamentally the wrong question, and I will try to wrestle down the reasons why in the rest of this post.
Neither the Declaration of Independence nor the United States Constitution say anything specifically about a “right” to health care. Republicans are fond of pointing to this in defense of their argument that health care is a commodity, a service provided by others rather than an inherent, individually claimed and experienced right, as is, say, freedom of thought or speech.
The question of anyone’s ‘right’ to be provided health care in an emergency becomes moot, irrelevant; it withers in the presence of a suffering human being, a brother or sister with a certain immediate claim on our conscience and compassion.
No one has to “give” you anything, save for tolerance, for you to exercise your right to speak your mind, goes this line of thought. That makes speech a “negative right,” in that it is absent a requirement for anyone else’s participation.
But health care is different because it is a service and a commodity. That places it in a different category. It is a “positive right,” in that some other person has to provide it for you, and that person has to be paid.
And to that imperative, the purely libertarian position toward which much Republican thought has been trending in recent years asks, “Why should that paying person be me?” (In the form of taxes to help fund the universal access to health care that is the ultimate outcome of a rights-based argument.)
Now, there’s a fallacious aspect to this libertarian argument that isn’t even the most important one against it, but let’s dispense with it here before getting to the more critical point. And it is this:
Even our constitutionally-elaborated negative rights—to speech, thought, assembly, and more broadly, to the Declaration of Independence’s “pursuit of happiness”—have to be protected by authorities such as police, the courts, and legislators. These rights are not sustained without the necessity of supporting them via the efforts of professionals who are paid by all of us with our taxes.
Somewhere and sometime—and it would be soon if law enforcement did not exist—others will infringe and even trample on our rights. Maybe mine more than yours, or vice versa. But we all pay our criminal justice personnel to prevent it. It’s what we do for each other, for the collective, in the social compact that is the basis of civilized society.
Indeed, virtually every aspect of living in community—access to speech, assembly, water, land, roads, energy, security—is dependent on everyone footing some portion of the bill for it and its infrastructure. In most societies, the wealthier classes pay substantially more for those via higher taxes.
So even negative rights require everyone to foot the bill, regardless of how many and how much any of us will ever have a direct need for what is required to ensure them.
Democrats counter the Republican/libertarian view by citing phrases in the preamble to the Constitution and the aforementioned Declaration of Independence, respectively:
”We the people of the United States, in order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare…”
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
For the more communitarian- rather than libertarian-minded Democrats, “promoting the general welfare” and the “pursuit of happiness” practically beg for the provision of health care as an “unalienable Right.” They would argue that the welfare of society and the happiness of any individual is negatively impacted when significant portions of the population do not have access to, because they cannot afford, health care services.
Republicans fear a culture of dependence, freeloading and over-utilization if health care is guaranteed to everyone as a fundamental right. Democrats fear an unfeeling Darwinian jungle that sees people dying in the streets while doctors and hospitals bar their doors until patients knock with their insurance papers or cash in hand.
Neither argument is without merit nor without its problematic aspects.
My own argument is that while the issue of health care as a right is not unimportant, it also masks a more fundamental and challenging question, which is not about the right of any individual to obtain health care. Rather, it is about the responsibility of a just and compassionate society to provide it to him or her.
In this view, the onus is not on individuals to claim a fundamental right and the authorities to enforce it on their behalf, but on our society to accept the fundamental responsibility to do so.
Do we want our fellow human beings suffering the profound negative effects of going without health care because they can’t afford it? Are we prepared to accept people living in ill health from preventable illness and disease, needlessly dying young, their children brought up without ready access to care while we preach to them about health care not being a philosophical “right?”
Every industrialized country in the world has answered those questions in the negative.
Except the United States of America.
The question of whether health care is a right or a privilege, an essential human need or elective market commodity, is worthy of interest and helps inform our thinking, but it is ultimately an abstraction. It has little to do with the question we face when a needy, perhaps sick, destitute, or even dying human being is in front of us. What do we say to them?
“Show me your credit card?”
Of course not. We have, indeed, been prohibited from doing so in hospitals across the country since 1986, when the Emergency Medical Treatment and Labor Act (EMTALA) required that hospitals accepting payments from Medicare (which is to say, most all hospitals) offer appropriate screening and stabilization efforts to all patients, regardless of citizenship, legal status, or ability to pay.
Why did we do this? Because quite literally, the cost to our very conscience and self-identity as a nation, as a communitarian populace embracing shared norms of compassion and basic mercy, mandated a response to sick or dying people showing up in our emergency rooms—abstract arguments over rights and commodities be damned.
The question of anyone’s “right” to be provided health care in an emergency becomes moot, irrelevant; it withers in the presence of a suffering human being, a brother or sister with a certain immediate claim on our conscience and compassion. But if this is so, then by what mental gymnastics do we wriggle out of providing all people, the poor most pointedly, with basic care that we know has a materially beneficial effect on their lives, their longevity, and their pursuit of happiness?
It’s not their right so much as it is our responsibility that should concern us. How dare we, by what unfeeling, cruel commodification of human beings, deny such a fundamental human need in the richest nation in history?
In the Old Testament story, Cain kills his brother Abel and God asks him, “Where is Abel your brother?”
“I do not know; am I my brother’s keeper?” Cain replies. His retort bespeaks irritation, almost a sneer in suggesting, “Am I supposed to keep track of all my brother’s movements?”
But both God’s question and Cain’s response beget a more critical point for our argument here.
“Where is your brother and sister?,” God, perhaps the paramount symbol of mercy in the human psyche, asks of us. “When they are sick, injured, beaten, starving, decrepit and desperate, with no means to assist themselves, what are you to do?”
The answer reveals itself in countless other biblical injunctions, as it does in virtually every other religious text in the world. And it has little to do, in the end, with rights, and even less to do with omnibus budget resolutions, or tax relief for wealthy donors, or allergies to “socialism,” or lectures about how one has lived, or scoldings about spending too much money on smartphones, or on how many healthy angels can dance on the head of a pin.
We will not be judged on any of those questions by those who come after us or by any God who awaits, but rather, “Verily, inasmuch as ye have done it unto one of the least of these…”
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