Tuesday, July 21, 2009

Healthcare as a “fundamental right.”

The last episode of “Seinfeld” ends with the four self-absorbed protagonists imprisoned together indefinitely – l’enfer c’est les autres – for failing to rescue a woman in need. The “duty to rescue” is a controversial subject in worldwide jurisprudence. Generally, common law jurisdictions reject any such notions. Civil law jurisdictions, i.e., Europe and elsewhere, typically have such a duty, sometimes under the civil code, sometimes under the criminal law. Here is an article on the subject for the curious. (Click on the “Download” link at the top of the linked page to see the full text of the article.)

It’s interesting that the Seinfeld episode relies on a Massachusetts law, because it is Massachusetts’s senior senator, Ted Kennedy, who is pushing hardest the idea that healthcare is a “fundamental right.” The tie-in to the duty to rescue is close: not only is healthcare a form of rescue, but the provision of the Quebec Charter of Rights that imposes such a duty states that “Every human being whose life is in peril has a right to assistance….” (So says Wikipedia, anyway.) For, as all lawyers know, there is no such thing as a duty without a correlative right; where there is no right, there is nothing for the rest of us to have a duty not to infringe.

Now Senator Kennedy wants to make healthcare a fundamental right, whatever that is. And that’s my problem with the idea: it doesn’t actually mean anything. What Kennedy wants is for healthcare to be an entitlement, and lacking any real philosophical basis for such an entitlement, he has made one up by ipse dixit, adding healthcare to life, liberty and the pursuit of happiness as things with which all men are endowed by their creator. But Americans don’t pay for each other’s life, liberty and the pursuit of happiness. We merely don’t empower our government to interfere with them. We no not recognize a God-given right to be rescued.

What about healthcare makes it any more “fundamental” than a house, or food? These things are, as any good Marxist will tell you, precisely the “freedoms” that communist states offer: freedom from hunger, from homelessness, and from doctorlessness. Our “freedoms” of speech and political association are, by contrast, “bourgeois” freedoms, self-indulgent luxuries of the rich, taken at the expense of the poor.

So what about food and shelter? The problem with healthcare as a fundamental right is not that it puts us on a slippery slope, but that it necessarily implies that equally essential material goods – the aforementioned food and shelter – are, a fortiori fundamental rights, too. How could they not be? But how much food, and how much shelter, and how much medicine are we entitled to as a “fundamental right”?

The outer edges of life, liberty and the pursuit of happiness are not clearly defined either, but the issues are qualitative, not quantitative. I am not made to surrender the fruits of my labor in proportion to others’ entitlement to liberty. The duty to rescue, the duty of the haves to feed, house, and care for the less fortunate, is a moral obligation, a matter of personal freedom and judgment, a part of the liberty that actually is a fundamental right. It is largesse, and as such it is something the people vote themselves at the greatest peril to democracy itself.


  1. Really enjoyed this posting, and you may be surprised to find that there is much of what you say that I agree with.

    My recollection of the debate over whether or not healthcare was a "right", came up around the debate over the Medicaid portion of the Medicare law in the 1960's. At that time the debate was that those people who would qualify for Medicaid had a "right" to the provisions of basic healthcare. While Medicaid is a State driven program, the Federal Government sets the minimum benefit entitlement that must be provided to get Federal payments. Those minimum benefits were the "right".

    In that manner, the "right" to healthcare is no different than any right that we have to food and shelter. It is clear that State and Federal programs do set minimum standards for food and shelter, and they all fall under the "pursuit of happiness" clause in our founding documents. To that extent healthcare along with anything else that helps in the pursuit of happiness becomes ion the words of Thomas Jefferson an "inalienable right"

    The payment by all of us of Social Security taxes, income taxes, and of employers on Unemployment and Disability taxes are all examples of your "surrendering of the fruits" of your labor. I agree that this is a moral obligation, that we as a people vote upon ourselves. I don't think of it as a largesse (try going without paying your income tax), and I don't understand what you mean by the "greatest peril to democracy itself" What do you fear, a loss of personal freedom?

  2. Irwin-

    You wrote:

    It is clear that State and Federal programs do set minimum standards for food and shelter, and they all fall under the "pursuit of happiness" clause in our founding documents.

    Or not. Jefferson certainly did not regard taxpayer-paid welfare as a fundamental right. And here I'm not trying to apply some sort of bogus originalist nonsense. I'm fine with Harlan's flexible version of "liberty" in Griswold, and I can imagine a fluid concept of what is included in the "pursuit of happiness." But I see no evidence that material sustenance at taxpayer expense has ever fit that mold.

    We agree that healthcare is like food and shelter. The only point of disagreement is that you think they are fundamental rights because people really, really need them, and I think they are things we should do for each other if we can.

    My point about a threat to democracy was an allusion to the statement, attributed to various sources, that democracy only lasts until the people discover that they can vote themselves largesse out of the public treasury.


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