Is Healthcare a Right?: A Reply to Jeff Hammond

The following is my reply to Jeff Hammond’s latest blog post, available here.  


There is a lot in Jeff’s latest blog post that I appreciate.  Something readers can learn about Jeff from his most recent submission: Jeff is a gifted teacher.  He does a fine job explaining an important concept that bears on our discussion about healthcare ethics: the difference between positive and negative rights. Jeff does this in a way that draws on his own expertise without speaking down to readers who are not legal scholars. In future discussions with my own students I could easily see myself turning to Jeff’s comments to help my students better understand the philosophical issues that inform contemporary debates about social justice and healthcare.  I’m always grateful for examples like this, even if the conclusions the author reaches do not match my own.

Furthermore, I think Jeff has done well to  draw attention to a real area of philosophical difference between us. Jeff indicates that I explicitly claim healthcare as a positive right.  Jeff denies that healthcare is a positive right.  To put this in terms often employed in contemporary healthcare debates, Jeff believes that healthcare provision is a privilege, a good that one may purchase freely, but not a good to which individuals are entitled.  Government should not be, in his words, in the “give-me-goodies” business. Government should be in the “keeping-out-of-my-business” business. In this respect, I think Jeff is absolutely correct when he identifies the critical difference in our positions: when I say that I prefer the NHS to our system of healthcare, one can take that to mean that I prefer a healthcare system that presumes access to healthcare to be a positive right.  Jeff does not see healthcare as a positive right, so our different postures reflect this important philosophical difference.

So is there a way forward for our conversation? I think so. Let me offer a few comments that extend on Jeff’s illuminating discussion of positive and negative rights:

(1) I think Jeff is essentially correct when he describe the United States Constitution as a document that embraces a robust vision of negative rights but does not offer a substantive account of positive rights.  However, to end our conversation of positive and negative rights there is to tell only half the story.  In her 2014 book Looking For Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive RightsEmily Zackin offers a helpful corrective to the argument that the concept of positive rights is alien to the American experience. As Zackin argues:

Throughout the nineteenth and twentieth centuries and across the United States, activists, interest groups, and social movements championed positive rights, and built support for their inclusion in state constitutions. As a result of these political campaigns, state constitutions have long mandated active government intervention in social and economic life, and have delineated a wide array of situations in which government is not only authorized, but actually obligated to intervene. (2-3)


Positive rights are not foreign to the American rights tradition. Says Zackin, “State constitutions contain a plethora of positive-rights provisions that cover a wide range of topics. In fact, these constitutional provisions closely resemble the positive rights in constitutions all over the world” (11). These provisions point us to a more complex portrait of rights and American tradition than the one Jeff is offering, one that is more amenable to positive rights claims than conservatives want to admit.

(2) To elaborate on the previous point it will help to return once again to education as an example.  By Jeff’s logic we should be just as willing to say that no child has a “right” to an education.  If positive rights are foreign to “the best vision of America,” as Jeff argues, then why not treat state-funded public education as just another example of government getting into the “give-me-goodies” business? Zackin points to the common school movement as perhaps the best example of the development of a positive rights tradition among the states, devoting an entire chapter to this claim:

Chapter 5, a study of constitutional education rights, focuses on the common school movement, which originated in the Jacksonian period and continued through the Reconstruction era. The common school movement successfully established the states’ constitutional duty to provide education, and its leaders argued that government had a moral duty to expand opportunities for children whose parents could not otherwise afford to educate them, and insisted that state legislatures should be legally obligated to fulfill it. This movement was quite clear that the value of constitutional rights lay in their potential to promote policy changes by forcing legislatures to pass the kinds of redistributive policies they generally avoided. This chapter provides what may be the strongest evidence for an American positive rights tradition that exists primarily at the state level. Throughout American history and even in the face of federal involvement, state and local governments have been responsible for establishing and maintaining public school systems. Furthermore, every state constitution currently includes a provision about public education, and many state supreme courts have explicitly declared these provisions to be educational rights.” (16)

I gather that Jeff himself is amenable to the existence of state-funded public schools; he has already said as much (Note: a detailed summary of the state-level constitutional provisions mandating the creation of public schools may be found here). My question for Jeff: do you see public education as just another example of government overreach, or do you believe that all children have a “right” to an education such that the state plays a legitimate role in ensuring the existence of educational opportunities for all children?

(3) In the end, our disagreement about whether or not access to healthcare is a “right” or a “privilege” may be moot.  To this point we have not discussed at any length the existence in the United States of programs like Medicare and Medicaid. I don’t think that Jeff is claiming that the existence of Medicare/Medicaid itself constitutes a violation of constitutional principle (correct me if I’m wrong, Jeff). Thus, even if healthcare is not a “right” in Jeff’s eyes, I gather that Jeff is not arguing for the elimination of programs like this that provide some level of healthcare to the poor and elderly.  If Medicaid is a program that passes constitutional muster, then liberals like me would be fine with simply expanding Medicaid to cover as many people as possible, setting aside the philosophical question of whether or not access to healthcare is a “right.” The pragmatic goal of ensuring access to healthcare takes priority over the task of working out the semantics behind this goal.

(4)  Jeff’s discussion of the “give-me-goodies” government makes it sound like he envisions liberals like me as advocating an Oprah-style government that is dispensing out Lexus sport cars to every citizen in the name of promoting equal distribution (“You get a sports car! And you get a sports car! And you get a sports car!”).


This caricature doesn’t reflect my own thinking, nor does it reflect the position of John Rawls, the philosopher that Jeff points to. Jeff and I already agree that it is just to ensure that children have access to education.  We agree that it is in our collective interest that the state redistribute resources so that this happens.  We also agree that Lexus sports cars are not public goods, that using the power of the state to ensure access to a Lexus the way that we ensure access to an education would be inappropriate.  Our difference here, I think, is that I see healthcare as a good that belongs in the same category as education. Jeff sees healthcare is something that is closer to a Lexus sports car. I don’t see healthcare as a “goody.” I believe it is in our collective interest that every person have access to at least a basic level of healthcare in the same sense that I believe it is in our collective interest that every person have access to a basic level of education.

(5) Jeff understands my vision of the world to be one that values equality “for its own sake.”  I must confess that I have no idea what it means to value equality for its own sake. Jeff observes (correctly) that I have been influenced by the work of the American philosopher John Rawls.  Rawls doesn’t value equality for its own sake either.  In fact, Rawlsian liberalism declare certain kinds of inequality to be just–namely inequalities that are organized so as to provide the greatest benefit to the least well off members of society. Related to healthcare, the liberal perspective does not deem it unjust that doctors receive substantially more compensation than restaurant employees. In a society in which every member has access to healthcare, all of us benefit from a system of inequality in which doctors are well compensated for their labor. We would all be worse off in a system that creates disincentives for people to do the hard work necessary to become well-trained, excellent doctors. Some of us also need more healthcare than others.  A woman born with Crohn’s Disease will need a level of healthcare during her life that a healthy person like me will not. In short, inequality itself is not unjust, at least from the liberal perspective that I defend. Some people will have more, others less.  Some people will also need more.  Inequalities are permissible. Sometimes inequality is itself desirable.

That’s my first crack at responding to Jeff’s lucid discussion of rights.  I’ll close this post with a few shorter comments in response to the last half of Jeff’s last post:

(1) I asked Jeff if he would be okay with maintaining the ACA requirement that health insurance providers provide insurance access without regard to pre-existing conditions.  Jeff replied that if we do this then we should stop calling the product “insurance” and should call it instead health care “coverage.”  My followup question for Jeff: Okay, so would you be okay with maintaining the ACA requirement and relabeling the product a “health care coverage” plan, not insurance?  Attaching a new label to the product doesn’t really address the important question of whether or not you support the mandate.

(2) I agree with Jeff that we probably need to adopt a wait-and-see approach to the current system.  The politics of healthcare reform are always messier than the principled discussions of liberals and conservatives.  Regardless, I am still interested in hearing from Jeff about his idealized alternative.  That is, if he could fashion an ideal system of healthcare provision, what would that system look like?  I’m inviting Jeff to set aside the difficult question of what is possible and to help us envision what is desirable from his vantage point.

(3) I was surprised at how mild Jeff was in his criticism of the NHS.  I agree with Jeff that implementing an NHS-style healthcare system in the United States is not feasible.  I’d also argue that it is not desirable given the circumstances we are in. The obstacles that would attend moving from a healthcare system consisting primarily of private contractors to one in which doctors become employees of the state would be substantial, and the collateral damage of such a move would be grave.  Of course the NHS offers only one example of how to socialize a healthcare system.  There are plenty of other industrial democracies that maintain a system consisting primarily of private healthcare providers while socializing or regulating the provisioning system that compensates them for the care they provide.  I really appreciate Jeff’s appeal to T.R. Reid’s book The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care. Reid’s book is a great introduction to how other countries are addressing the healthcare needs of their citizens in ways that are more cost-effective and fairer than in the United States.


(4) Jeff may well be correct that U.S. citizens are less amenable to the intrusions of the state into healthcare than their British counterparts. This is why conversations of this sort are so important.  Minds need to change.  As for the “bureaucratic queues” of the NHS that worry Jeff so much, anecdotal appeals can be misleading.  Jeff speculates that his 7 week wait to have non-emergency gall bladder surgery would have been much longer in the United Kingdom.  It’s hard to render this speculation concrete, but in 2013 the Commonwealth Fund conducted an extensive survey of healthcare consumers from 11 nations, including the United States and the United Kingdom.  Among the findings of the survey:

  • The United States spent roughly $8508 per capita on healthcare during the calendar year. The United Kingdom spent roughly $3405 per capita during the same time.
  • 37% of Americans surveyed indicated that they had experienced a”cost-related access problem.” In the United Kingdom, 4% indicated this experience.
  • 23% of Americans surveyed indicated that they had a “serious problem paying or were unable to pay medical bills in the past year.” In the UK: 1%.
  • 48% of Americans surveyed indicated that they were able to schedule a same-day or next day appointment with a doctor.  In the UK: 52% indicated this.
  • 26% of Americans surveyed indicated that they had to wait 6 or more days for an appointment. In the UK: 16% indicated this.
  • What about waiting times for specialist appointment? 76% of Americans surveyed indicated that they waited less than 4 weeks.  In the UK: 80% indicated that they waited less than 4 weeks.  Alternatively, 6% of Americans surveyed indicated that they had to wait two or more months.  In the UK, 7% of survey respondents indicated that they had to wait this long.

This data suggests that appeals to long wait times in the NHS can be misleading.  Even Jeff’s experience in the American system illustrates that waiting for non-urgent care is a reality that American patients experience. We should be careful not to read too much into a single survey, just as we should be careful to avoid reading too much into individual stories of a healthcare consumer’s bad experience in the American healthcare system or in the NHS. Having said this, the survey provides some evidence against the overwrought angst of conservatives fearful of the specter of socialized medicine.





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