Healthcare is a Privilege, Not a Right

Stephen Kershnar

Healthcare is a Privilege, Not a Right

Dunkirk-Fredonia Observer

March 17, 2019

           

Pope Francis, Former President Barack Obama, and Senator Bernie Sanders all claim that healthcare is a right, not a privilege. Pope Francis states, "[H]ealth is not a consumer good, but rather a universal right, and therefore access to health care services cannot be a privilege.” Former President Bill Clinton did not claim that health care is a right, but that it should be a right.

In contrast, President Donald Trump claims that healthcare is a privilege, not a right. During the campaign, he said, “You wouldn’t give some bozo with zero experience a management position. Why should healthcare be any different?” He also said, “Where I come from, you have to prove your worth. You have some guy with no college degree working a minimum wage job; no ambition, no goals, nothing to show for it. Yet for some reason, the current administration believes he – and millions of people like him, should have access to health insurance. It’s outrageous.” Whose view is correct?    

If there is a moral right to healthcare, then people have such a right regardless of whether the law says they have it and, also, regardless of whether there is a government to enforce it. Rather, such a right would exist as a requirement of justice. If, instead, there is merely a privilege to healthcare, but not a right, then it is not wrong if no one provides it (including the government). It might be good or efficient for the government to provide it, but justice would not require it.

There is good reason to believe that there is no such right. First, consider who the purported right would be held against. The logic of rights tells us that every right is held against someone. If there is a right to healthcare, then there is someone against whom the right is had. There is no one against whom such a right is had. If there were a right to health care, then, as a moral matter, either a taxpayer would have a duty to give money to someone needing healthcare or a physician would have a duty to give his services to her. There are no such duties. A person in need of healthcare owns neither the taxpayer’s money nor the physician’s labor. After all, the physician is not her slave.

Also, if there were such a right, then it would be held against other people or physicians even in the absence of government or law. Remember that a moral right (specifically, a natural or human right) is a requirement of justice and does not depend on whether a government enforces it or a law requires it. It is implausible that people would have a duty to pay for other people’s medical services or physicians would be required to provide such services if there were no government or law.

Second, consider the content of a right to health care. It is unclear what a right to health care would entitle one to receive.

Health comes in a continuum from very sick to very healthy. It is unclear what level of health a person has a right to enjoy. In addition, a government often can’t provide a minimum level of health in the face of severe injury or disease.

If, instead, the right is a right to an amount of healthcare services, it is unclear where on the continuum of services a person might receive that the right ends and a privilege begins. Medical services can range from the bare minimum in disease prevention to very expensive life-saving surgery and receipt of scarce organs for transplant. It is implausible that there is a threshold amount of services a person has a right to after which she has no more than a privilege.  

In addition, consider how the right to health care relates to the other necessities. If there were a right to healthcare, then there would also be a right to food and housing. All are necessary for someone’s life to go well. However, if there are rights to healthcare, food, and housing, then these rights would conflict. A dollar spent on health care cannot be spent on food and housing. If rights cannot conflict, as is often assumed, then there cannot be rights to life’s necessities.    

Third, in the U.S., consider who would have such a right. If there is a right to healthcare, then it is held by only some people or by everyone. The right can’t be held by only some people because restricting the right to some people, but not others, would be arbitrary. If the right were created by law, this would create a legal right, but not a moral one. The latter is what Francis, Obama, and Sanders have in mind. The right to health care can’t be had by everyone because, currently, it is simply too expensive for some people (for example, American taxpayers) to be able to provide quality medical services to the whole world.   

Fourth, the alleged right does not justify any particular type of health care system. Even if people did have a right to health care, this would still not tell us whether there should be a government monopoly on medical services (for example, a single-payer system), government-guaranteed medical services (for example, Medicare for all), government-subsidized medical services (for example, Medicaid for the poor), government-mandated purchase of medical services (Obamacare), or no government involvement in medicine (for example, the free market). If the correct institution is picked out by what makes the average person the healthiest, then the system should be chosen through economic-based rather than right-based reasoning. This is true even if the chooser’s heart bleeds for the poor. Clinton likely confuses economic- and right-based reasoning.     

Such a right could even lead to an apparent contradiction. What if the best way to promote people’s health is to treat them as if they had no right to health care? Perhaps free-market breakthroughs in drugs, preventive medicine, and surgery make people healthier. We might end up in a situation in which the best way to protect people’s right to health care is to pretend they don’t have such a right.  

The fact that Clinton, Francis, Obama, and Sanders don’t understand how rights work and Trump does is no big deal. It will be a big deal if voters think that that these guys’ view is correct and that this tells us which healthcare system to adopt.

Landmark Abortion Cases' Bad Reasoning

Stephen Kershnar

Overturning Landmark Abortion Cases

Dunkirk-Fredonia Observer

March 4, 2019

It is widely expected that the Supreme Court will revisit its landmark abortion cases: Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992). 

Please note this column is informed by ideas from Rice University’s Baruch Brody, Quinnipiac Law School’s Stephen Gilles, and Oxford University’s Jeff McMahan.

In Planned Parenthood, Justice O’Connor put forth two Constitutional rules on abortion that focus on viability. A fetus is viable when it is capable of surviving outside the woman. The first rule is that before viability, a state may not unduly interfere with a woman getting an abortion. The state unduly interferes with abortion when its law or regulation is intended to or has the effect of making abortions more difficult to get. She gave three reasons for the focus on viability: precedent, workability, and consent. On precedent, O’Connor noted that Roe had twice been reaffirmed. On workability, she reasoned that viability sets a clear line for women and the state. On consent, she asserted, a woman who fails to act before viability has consented to the State’s intervening on behalf of the fetus.

Second, O’Connor found the State could ban abortion after viability so long as it had exceptions for women’s life and health. O’Connor claimed that this post-viability rule reconciles woman’s liberty with the State’s interest in the women’s and fetus’s lives, although she didn’t explain why it does so.  

The problem with these two rules and the reasoning behind them is that they aren’t in the Constitution. Nor are they philosophically justified. Instead, the rules were pulled out of thin air and are, at best, an attempt to find a politically acceptable middle ground.

The Constitution’s text does not mention viability. Consider, for example, the Due Process and Equal Protection clauses. The Due Process clause mentions people born in the United States, but this is, at best, a sufficient condition to be a citizen and not relevant to abortion. Those who wrote and ratified the Constitution did not intend that a woman’s right to an abortion to cease at viability. This is true regardless of whether they thought women had such a right.   

O’Connor’s reasoning is abysmal. On an issue as momentous as this, the fact that Roe had been reaffirmed twice is beside the point. In addressing people’s fundamental rights, the Constitution does not mention workability whether explicitly or implicitly. Even if workability were relevant, and it’s not, viability is less workable than various bright line rules. Consider, for example, the end of the first trimester. The consent argument also fails. The Constitution doesn’t mention it in this context. If it were relevant, then, again, a bright-line date (for example, ten weeks after conception) is a better way to put women on notice that if they want to get an abortion they have to do it by that date. In addition, viability will occur earlier and earlier in pregnancy as neonatal technology improves, thereby making viability less helpful for giving women a deadline for abortion.    

Viability also sits uneasily with other areas of the law. Ten states consider a stranger’s killing a pre-viable fetus to be homicide. This leads to an oddity in that some people can kill pre-viable fetuses with impunity (for example, women and physicians) while others cannot.     

As a biological matter, viability is insignificant. The fetus is a distinct organism from the woman. This can be seen in its separate genetic makeup, metabolic processes, and boundaries. Also, a fetus’ biological dependence from the mother does not change at viability. Even if the fetus is viable, if it is not removed it still depends on the woman because it does not breathe air, ingest food, or maintain its body temperature.  

Most important, as a philosophical matter, viability is irrelevant. A person comes into existence when his brain comes into existence or, perhaps, when his brain first has a relevant capacity. Consider, for example, the capacity to feel pleasure and pain, be self-aware, or reason. These capacities likely begin after viability.

The irrelevance of viability can be seen in that a person exists only when his brain exists (or, perhaps, when his brain has a relevant capacity). This explains why a body with two heads would be considered two people. A real world example that is something like this can be seen in the Hensel twins: Abby and Brittany.

The notion that people begin to exist when their brains exist explains why if one person’s brain were to be put in a second person’s body and the second person’s brain were to be put in the first person’s body, intuitively, each person would be located where his brain is located rather than where his body is located. Thus, if Obama’s brain were put in Trump’s body and Trump’s brain were put in Obama’s body, Obama would be in Trump’s body and Trump would be in Obama’s body.

The notion that a person is her brain (or, perhaps, part of it) can also be seen in the intuition that a person ceases to exist when the part of her brain where consciousness occurs dissolves away. Consider, for example, Terry Schiavo. A fetus gets a brain before viability and a functioning one after viability. Thus, viability is irrelevant.  

Viability should be irrelevant to the Constitutional status of abortion whether one considers the Constitution’s text or the intentions of those who wrote and ratified it. It is also irrelevant when we consider biology and philosophy. It is not even a practical standard or one that puts a woman on notice.

The Court will have to decide that the Constitution is silent on abortion or, instead, discover when it is that a person comes into existence. If the Constitution is silent on it, then it is for the states and people to decide. If the Court tries to discover when a person comes into existence, it will have to discover when a fetus gets a brain or, perhaps, a brain with the relevant capacity. No matter what it decides, Roe and Planned Parenthood should be overturned.