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Health Care Financing Reform: (12) Kevin O'Brien: "Health Care Is Not a Right"

by Professor Will Huhn on September 9, 2009

in Constitutional Law,Wilson Huhn

In a recent column Cleveland Plain Dealer reporter and columnist Kevin O'Brien makes a powerful argument for the proposition that health care is not a right.  On constitutional grounds he is absolutely correct.

O'Brien's column from last Thursday was entitled "Health Care Costs Money – Real Rights Don't."  This neatly sums up the distinction between "negative liberties" and "affirmative duties."  The United States Constitution prohibits the government from interfering with our basic liberties – the government may not infringe upon our exercise of freedom of speech, freedom of religion, or the right to privacy.  But in general the government has no obligation to provide us with anything – food, clothing, shelter, education, or medical care.

The Constitution does not even require the government to protect us from harm at the hands of private individuals.  The Constitution does not prohibit murder, rape, or robbery.  It does not prohibit individuals or corporations from discriminating on the basis of race, religion, gender, age, disability, or sexual orientation.  In the sense that Kevin O'Brien has used the term, it is accurate to say that there is no (constitutional) right to even life itself, for our lives and property are at the mercy of other people unless laws are enacted to protect us from harm.

O'Brien is also correct in identifying the core element distinguishing constitutional rights – in general, constitutional rights don't cost money.  To obey the Constitution, all that the government has to do is to refrain from acting.  This principle is also consistent with the doctrine of Separation of Powers.  It is the legislature, acting on behalf of the taxpaying public, that appropriates public funding.  It is almost always inappropriate for the judiciary to assume this function.

There are exceptions to this general rule.  For example, when the government seeks to convict someone of a crime, under the Sixth Amendment the government must provide an attorney even if the defendant cannot afford one.  Once incarcerated, the person has a constitutional right to be treated humanely, and the courts can order the government to spend to upgrade prison conditions.  This would include adequate health care.  But where the government has not taken someone under its control and assumed responsibility for that person's care, the government has no affirmative duty to protect that person from harm.

O'Brien contends that the health care debate should not be centered upon whether or not health care is a "right," but rather whether there is a moral obligation to provide health care to those in need.  He states:

What they should be writing about, and what all Americans should recognize, is not a nonexistent "right" of people in need to take — or to have the government do their taking for them — but the moral obligation that exists on the part of people who are in a position to give.

Once again, I agree with Mr. O'Brien.  I would add that even if we put moral considerations aside, economic considerations will very quickly force us to reform our system of financing health care.  Our present system of unregulated private health insurance is just too expensive and inefficient – it can no longer be sustained for even a few years.  More on that tomorrow.