Michael Dorf: Do Americans Deserve Good Health Care as a Right?

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Youssef Cohen gets checked by a nurse before undergoing cancer treatment in New York in March 2016. Michael Dorf writes that it is not contrary to the American tradition as a whole to recognize positive rights, such as the right to health care. Consider public education, he says. The constitutions of all 50 states contain provisions that obligate the states to provide a free public education to minors. John Moore/Getty

This article first appeared on the Dorf on Law site.

During the debate over the ill-fated "American Health Care Act," Freedom Caucusers and other critics from the right who thought that the measure did not go far enough toward completely repealing the Affordable Care Act (ACA) frequently used the same talking point. Health care, they asserted, is not a "right."

Many of these statements were uttered without any concrete semantic intentions; the utterers were simply dog-whistling their anti-government base while misleading the broader public, much in the way that Republicans previously learned from the likes of Frank Luntz to call the estate tax the "death tax" and to decry the ACA as a "government takeover" of health care.

Indeed, as I shall explain, the new rhetoric is, if anything, even more misleading than the Luntzian malphemisms.

What does "health care is not a right" mean? A recent NPR news story featuring three Donald Trump supporters is illuminating. In explaining why she supported ACA repeal, one woman said "health care is not a constitutional right." Because the point of the segment was to listen to alternative voices (from the perspective of the NPR audience), the interviewer did not interrupt her or otherwise press her on this point.

Had the interviewer interrupted, she might have noted that the observation is correct but a non sequitur. Nearly all participants in the debate over ACA repeal recognize that government-provided health insurance is not a constitutional right. That's why it took a statute to enact it.

But neither is Social Security, Medicare, the Copyright Act or the national park system a matter of constitutional right. The observation that access to some government program or benefit is not a constitutional right has no bearing on whether the program or benefit is wise policy.

Perhaps the Trump supporter in the interview I heard was distorting what she had heard from a better-informed talking head on Fox News? Based on what one finds on the internet, that seems unlikely.

Related: Foreign Service podcast: Why was Trumpcare such a fiasco?

Googling "Health care is not a right" turns up a great many articles, but right at the top is a 1993 essay by Leonard Peikoff that was written in opposition to the proposal for health care reform from Hillary Clinton when she was first lady.

Peikoff is, like Speaker of the House Paul Ryan, a devotee of Ayn Rand. Thus, Peikoff asserts that government regulation or provision of health insurance is not only impractical but downright immoral.

The core of what Peikoff wrote in 1993 still finds its way into most of the contemporary explanations of what people mean when they say "Health care is not a right," and thus he can stand in for just about everyone now making the "not a right" claim, even those who are somewhat less extreme libertarians.

What is the core? Simply that a right to health care, unlike a right to free speech or a right to possess a firearm, is a positive right—a right to government assistance—rather than a negative right—a right against government interference. Peikoff and the contemporary opponents of government-provided or subsidized health care assert that only negative rights are real rights.

The argument fails before it even gets going. Some of the people who make the positive/negative distinction appear to think that as a conceptual matter, the term right can refer only to negative rights.

This is preposterous. Many national constitutions contain not only negative rights but positive rights—typically denominated "economic, social and cultural rights." There is even a U.N. treaty—the International Covenant on Economic, Social and Cultural Rights—Article 12(d) of which commits the state parties to "the creation of conditions which would assure to all medical service and medical attention in the event of sickness."

The U.S. signed the treaty in 1977, but it was not ratified here. However, 165 other countries did ratify it. So much for the conceptual claim that positive rights are oxymoronic.

Ah, but does U.S. non-ratification demonstrate American exceptionalism? When right-wingers say that "health care is not a right" because it's a purported positive right, do they mean that it's an impossibility here? Quite likely they do, but that claim is also false.

For one thing, at least one of our constitutional rights is a positive right—namely the right of indigents to free counsel in criminal cases, found by the Supreme Court to be guaranteed by the Sixth Amendment in Gideon v. Wainwright.

To be sure, it is possible to distinguish Gideon on the ground that the positive right is contingent in order to protect the negative rights to life and liberty: If the government wishes to deprive someone of life or liberty (by executing or imprisoning him), it can do so only after a fair trial, which requires competent counsel. Seen this way, maybe Gideon doesn't count.

But so what? It surely is not contrary to the American tradition as a whole to recognize any positive rights. Consider public education. The constitutions of all 50 states contain provisions that obligate the states to provide a free public education to minors. That obligation on the state functions as a positive right of students (and their parents) to the benefit.

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Moreover, even if we were to concede that constitutions don't or shouldn't contain positive rights, it would hardly follow that legislatures should not create statutory rights to benefits (as noted above in my discussion of the NPR segment).

Indeed, the most powerful argument typically offered against recognizing positive constitutional rights is that implementing positive rights requires complicated trade-offs best suited for legislative (and administrative) judgment, not judicial decree on the basis of broad language. But that argument indicates that the legislature itself can make the complicated trade-offs needed to specify statutory positive rights.

Thus, the claim that health care is not a right is mere flimflam.

That doesn't mean that the ACA or any other legal regime for the regulation and/or subsidization of health insurance is necessarily ideal policy. One could argue—as one commentator in the National Review argued recently, using the "health care is not a right" trope—that the unregulated market does a better job of providing health care than do systems of public health insurance of the sort one finds in all advanced countries other than the United States.

If that's the argument, conservatives should make it directly and honestly. They'll be dead wrong, of course. But at least it would be clear what they're saying.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.