Is Health Care a Right?

John Mackey, founder of the upscale Whole Foods supermarket chain, has raised howls of protest by saying, in a guest editorial in the Wall Street Journal, that “a careful reading of both the Declaration of Independence and the Constitution will not reveal any intrinsic right to health care, food or shelter... because there isn't any.”

Outraged, an array of left-leaning pundits and organizations is calling for a boycott of Whole Foods. Mackey has become a hate figure for daring to publish a reasoned, temperate opinion on the health care debate that challenges a basic assumption of the left.

It should be noted that a call to boycott is not an argument. It is an attempt to punish dissent. If the left wants to advance the health care debate, it should attempt to refute Mackey’s argument, not simply demonize him. Sadly, a quick scan of responses to Mackey’s article shows a heavy preponderance of invective over argument.

The unexamined assumption that people have a right to health care needs to be debated because so many people share it so unquestioningly. And if you start with that as an assumption, much of the opposition to government-provided health care will seem malicious and obtuse. This is a systemic problem: the left, working on assumptions the right does not share, proposes something; the right, not bothering to elucidate the difference in assumptions, opposes it and is accused of mean-spiritedness and other moral failings. This lack of philosophical curiosity poisons the debate.

I’ve said before that calling health care a right is problematic; maybe it’s time to discuss it a little further. Saying that health care (or decent housing, or any other goods or services) is a fundamental right is problematic because it is tantamount to declaring that you have a claim on somebody else’s labor or time or possessions. The amount of philosophical justification accompanying this declaration is usually approximately zero.

The best discussion of the philosophical grounding of rights that I know of is a book called Persons, Rights and the Moral Community by Loren Lomasky. In this book Lomasky tries to get at the heart of what rights are and why they are generally held to be “untrumpable”—that is, how they are different from mere preferences, which can be thwarted without the perception that a violation has occurred.

The entire argument is beyond the scope of a blog post, but Lomasky does take on the question of positive versus negative rights. Negative rights are those which boil down to saying that you have the right not to be messed with. Positive rights are those which express a claim to something concrete—goods or services. Classical liberalism, roughly speaking the philosophical tradition of our Founding Fathers, held negative rights to be very important but did not recognize positive rights. (Take a look at the Bill of Rights for examples of negative rights.) The line of thinking that goes from Marx through European social democracy to modern American liberalism tends to stress positive rights (while being a touch more selective about negative rights).

Lomasky points out that the fact that something is needed does not imply that one has a right to it. Our list of potential needs includes things which cannot be provided by others, like intelligence. There is no logical correspondence between needs and rights.

Any attempt to define a list of things crucial enough to be regarded as positive rights is necessarily arbitrary. (Just a house? Why not a car, if you live far from where the jobs are?) Philosophical clarity gets lost pretty quickly.

But more importantly, need on your part does not imply a duty of sacrifice on mine—if I have two good corneas and you have none, does your pressing need create a right to one of my (or anyone else’s) corneas? It may be praiseworthy of me to provide you with a good by my sacrifice, but that does not make it your right.

Asserting a right to housing asserts a claim on the labor of carpenters, masons, etc. What gives rise to this claim? A right, remember, is something that cannot be trumped. When a right to a good is legitimately asserted, it must provided. Do those whose labor provides the good deserve compensation? If so, how are they to be compensated? Questions of payment are inescapable, and a positive right is economically indistinguishable from any other good.

Health care goods and services obey the laws of economics even if you don’t think they should. Ask the British National Health Service. An asserted right proves to be inextricable from the grubby reality of overworked doctors and long waiting lists. When doctors in a public health service go on strike, are they violating the rights of the patients who are not served? Philosophical clarity gets lost here, too.

And philosophical clarity is at a premium. As Lomasky points out, an escalation in claims of rights makes public problems more intractable, since when perceived rights come into conflict, a judgment against one party leaves the loser with a sense of grievance. It is an advantage to have a clear criterion for rights and make sure that our legal system guarantees them.

As Lomasky says, an important aspect of the classical liberal position on rights is its modesty: since the costs to others of conceding these negative rights is lower, they are less likely to opt out of the system. A regime of rights will not be respected if it is too costly.

So I think John Mackey is right. Now, none of this means that we should not place a high priority on the provision of health care, education and any number of other socially useful goods to all members of the population. That’s just good government. Urgency in providing desirable social goods ought to be way up there on our scale of public policy values.

But calling real-world goods “rights” complicates their provision by obscuring the very real costs of providing them. Call a good or a service a right, and you still have to figure out how to pay for it. It doesn’t appear out of thin air.

If you’re outraged by this position, so be it. But the burden of proof is on you to show how you’re going to pay for all the good things you think we are entitled to. John Mackey presented a list of reasonable proposals for doing that in his widely vilified op-ed. Before you join the boycott, you might just want to run an eye over them.

Sam Reaves
www.samreaves.com