No, Healthcare is Not a Right. But That’s Not the Problem.

I remember sitting in an undergraduate health policy class when the instructor resolutely declared that “healthcare is a basic human right.” I was preparing to apply to PA school at the time and was already bothered by the idea that someone might feel that they had a right to my time and talents. But if universal healthcare isn’t a right, what is it? A privilege? A luxury? Just a good idea?

I don’t recall exactly what I said at the time, but I distinctly remember being so bothered by the thought that my hand shot up before I knew what I was going to say. How can someone have a right to the fruits of my labor; the sacrifice of time and money that would go into my medical training? 

What is a Right?

Healthcare is obviously important, whether from an ethical or economic standpoint. But couldn’t the same be said for other basic needs such as food and shelter? 20th-century psychologist, Abraham Maslow, known for his eponymous hierarchy of needs, the most basic of which are physical: food, water, and warmth. Are these things considered rights just because they are necessary? Does the hungry person have a right to walk into the bakery and take a loaf of bread without giving something in return? 

Perhaps we ought to define a right. This is easier said than done, however, as philosophers have been arguing this point for millennia. 18th-century philosopher Immanuel Kant believed that human rights are “rights we give to ourselves”. 100 years before Kant was Englishman John Locke who believed that the only rights of human beings were those related to self-preservation, i.e. life, liberty, and property (the latter existing to secure the former).  

Who Determines Rights?

The entire purpose of society and government according to Locke was to protect these inherent rights, rights which America’s founding fathers viewed to be God-given and therefore inalienable. The United States Constitution comprises the laws Framers felt necessary to protect these natural rights by establishing limits to government authority–their principal concern was avoiding another tyrannical authority. In the Preamble to the Constitution, it’s primary purpose is stated as “promot[ing] the general welfare” and “secur[ing] the blessings of liberty”. But how is this to be accomplished? The general welfare of the people would be promoted by protecting freedoms, not in providing goods or services, no matter how essential.

For opponents of another large centralized government, further protections for individuals were required in the form of a Bill of Rights to gain the support needed to ratify the new Constitution. The Bill of Rights constitutes the most basic personal freedoms that the Framers felt deserved a specific mention. Notably absent from the Bill of Rights is a list of material goods and services to which citizens are entitled however necessary to life and liberty they may be.

Legal systems across the developed world recognize entitlements when penalties follow violation of the associated law. For example, punishing those who kill and steal acknowledges that life and property are things that ought not to be infringed. Even speed limits aim to reduce the chaos that otherwise might be a risk to life and limb. How are offenders dealt with? Typically by restricting their liberty (jail) or confiscating some of their property (fines). Punishment for a capital offense may even cost the offender their life. Those that claim healthcare is a right must then be prepared to seek retribution in like manner. 

Are we prepared to fine or jail doctors that fail to provide their professional services? EMTALA is the closest we’ve come thus far.

Every ER Doctor’s Worst Nightmare

The Emergency Medical Treatment and Labor Act (EMTALA) is a 1985 law designed to avoid the dumping of undesirable patients on publicly funded hospitals. EMTALA requires hospitals that accept Medicare payments to screen and stabilize patients regardless of their ability to pay. Penalities for inappropriately transferring an unstable patient to avoid nonpayment for services include:

  • Termination of Medicare contract
  • Fines up to $50,000 per violation
  • Liability for personal injury in civil court

According to the American College of Emergency Physicians, between October 1, 2005, and March 31, 2006, $345,000 in fines were collected from 12 hospitals and one physician. It’s a far cry from fitting punishment for violation of an “essential right”.

More Issues with Right to Care and Why That Doesn’t Really Matter

Another problem with trying to establish healthcare as a right, or entitlement, is that it then becomes another person’s requirement to pay for it. The battle for employer-provided contraception pit those wanting free access to birth control with business owners who have a moral objection to its use. One group advocates for their “positive right” to a particular good, while the other feels violated in their negative right to not participate in something they feel immoral.

Healthcare is also not a simple commodity that can be bought and sold. Let’s suppose for a moment that it was–who would decide what constitutes fair price? How would we decide how much is enough? Would we have the same right to access cosmetic surgery and homeopathy as preventive primary care?

One of the core dilemmas with healthcare in the US, is not that it isn’t viewed as a positive right, or something people feel they are entitled to receive. I believe the majority of Americans probably view universal healthcare as morally laudable or economically beneficial. The argument of whether or not it’s a right, a privilege, or a public good only serves to establish our determination to find a solution and our commitment to pay for it. But none of this addresses one of the most basic problems–scarcity. There simply isn’t enough to go around.

We’ve been suffering a growing physician shortage for decades. Wait times to see a healthcare provider are still going up. Scarce resources lead to some people going without. This leads to rationing. Our current system rations based on the availability of health insurance and the ability to pay.

And here lies America’s real issue: No one wants to focus on scarcity in order to make care more accessible and affordable. Politicians seem to believe that by forcing everyone into what ought to be a financial product to insure against economic ruin (health insurance), this will somehow equate to actually receiving healthcare. It couldn’t be further from the truth.

The Ultimate Conflict of Interest

Unlike other basic needs such as food, water, and shelter, healthcare is a complex system of degreed professionals, physical facilities and equipment, information, and biotechnology. The development of the “third-party payer” has insulated the consumer from the real, and rising, cost of care. Our current system is a mix of public and private payers that leaves out too many entirely. It’s far from a perfect system. Actually, its really more of a health insurance system, designed to deny care, than an actual health care system.

Why is conflating health insurance coverage with actual health care a mistake? Mary Gerisch a retired attorney and health care advocate explains: “Health insurance companies make money by denying claims for care while still collecting premiums. That’s their business model. They lose money every time we actually use our insurance policy to get care. They have shareholders who expect to see big profits.”

In no other industry is insurance so entangled. I would never dream of involving my auto or home insurance in day-to-day maintenance. Those policies are in place to insure against financial ruin in the event of a disaster. Mrs. Gerisch goes on to say that “health insurance is no more health care than fire insurance prevents fires in our homes.”

How did this happen? How did we get to the point where we relied on health insurance for annual physicals and major surgeries alike? Why do so many Americans rely on employer-sponsored benefits? You can thank a well-intentioned government and a world war.

It’s All About the Ben…efits

Toward the end of World War II, the War Labor Board froze wages in an effort to alleviate unfair advantage in the midst of a labor shortage. The Board subsequently ruled that employer contributions to health insurance, which had been actual insurance at one point, did not count as wages and so fringe benefits were offered to attract workers. Health insurance utilization had tripled by the end of the war.

Where does that leave us today? In 2017, the Kaiser Family Foundation reported that about half of Americans get their insurance from their employer while only 7% purchase their own coverage. Around 8% have no insurance while the remainder are covered by Federal programs like Medicaid and Medicare.

But none of this produces any actual health care. We pay thousands of dollars a year only to be able to pay more in the form of copays and deductibles (assuming you have a healthcare provider and can get into see them when you need to). Prices are anything but transparent. Competition is almost non-existent. When innovative new ideas are born, they’re crushed by established interests.

To truly transform our healthcare system, we need to address scarcity, the role of insurance, and embrace new models of care.

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