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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.


Darrel Baird September 9, 2009 at 10:00 am

The lesson here is– Rights are intangible ; Moral obligation is dynamic .
Moral obligations are just that. OBLIGATIONS ! We ( This great United States of America ) need to stop debating constitutional juristiction and address a huge moral problem.
I think that President Roosevelt'sapproach to electrification of rural America should, at least, be considered . Co-operatives empower the capable while limiting the power of a monopoly .Right now we have a monopoly without limits.
To replace moral obligation with constitutional action will eventually weakin both to the point of being replaced with gridlock .
Have a nice day,

Geoff Beckman September 9, 2009 at 11:17 am

I take it you got your degree from Lima State– or possibly (like Laura Ingraham) you're a nutritionist. I'd take issue with anyone who applies the Kevin O'Brien approach to reading the constitution…

But you can't even do that without embarrassing yourself. The statement below is categorically wrong:

"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."

Actually. the sixth amendment, in its entirety, reads:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

That text does not stipulate that defendants have a right to have "the assistance of Counsel" whether or not he/she can afford it. It merely says that the government can't prohibit defendants from employing one to assist with their defense.

This is not a subtle or niggling distinction, and since you apparently aren't familiar with its history, I'll enlighten you.

At the time the Constitution was written, laws in the United Kingdom did not explicitly state that prisoners accused of a crime could employ a lawyer in a criminal trial. It was generally accepted that the accused should be able to have a lawyer if he/she could afford one– but the magistrate always had the option to refuse to permit counsel to speak, to evict him from the trial and to issue an order barring contact with the accused.

At one time, this might have made some sense– trials had been conducted by local officials and the feeling was that hired defenders from the cities might overwhelm a country prosecutor or judge (giving a wealthy defendant an edge, regardless of guilt).

But as the UK began to professionalize its legal system (by the 1780's, all criminal prosecutions were being funded and performed by His Majesty), not giving defendants access to the same resources became visibly unfair.

The colonists were the first to address this issue–and they beat the English by almost 50 years (the Prisoners' Counsel Act of 1836).

But the text absolutely does not say that the defense has a right to have counsel free of charge. And, until Powell v Alabama, decided in 1938, it was never interpreted that way.

Powell extended the right to counsel only to capital crimes. Johnson v Zabat extended it to all federal cases (in 1938). It was not until 1961 (Hamilton v Alabama) that the right went to states– and even then, it only applied to capital crimes.

The "right" as you stated it, was created by a decision by a court led by that notorious communist (ask Kevin, he'll agree) Earl Warren in 1963. You have heard of Gideon v Wainwriight, I hope?

And even Gideon didn't extend right to appointed counsel in all cases where the defendant could be imprisoned– that was still being hashed out in the Burger Court, during the Carter administration.

I hadn't read this blog before– is this is a representative sample of the quality of your legal scholarship? If so, I am duly impressed. Normally I need to visit Confederate Yankee, Captain Ed or Megan McArdle to find someone this ill-informed about our laws.

Professor Will Huhn September 11, 2009 at 10:35 am

The Supreme Court case establishing the duty of the government to provide counsel to indigent defendants is spelled "Gideon v. Wainwright" and it is still good law. Laura Schlessinger is a doctor of physiology, not a nutritionist. Earl Warren was a moderate Republican, not a Communist.

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