Friday, March 31, 2017

"Health Care is not a Right" is the new "Death Tax," Only Worse

by Michael Dorf

During the debate over the ill-fated "American Health Care Act," Freedom Caucusers and other critics from the right who thought that the measure did not go far enough toward completely repealing the Affordable Care Act frequently used the same talking point. Health care, they asserted, is not a "right." Many of these statements were uttered without any concrete semantic intentions; the utterers were simply dog-whistling their anti-government base while misleading the broader public, much in the way that Republicans previously learned from the likes of Frank Luntz to call the estate tax the "death tax" and to decry the Affordable Care Act as a "government takeover" of health care. Indeed, as I shall explain, if anything, the new rhetoric is even more misleading than the Luntzian malphemisms.

What does "health care is not a right" mean? A recent NPR news story featuring three Trump supporters is illuminating. In explaining why she supported ACA repeal, one woman said "health care is not a constitutional right." Because the point of the segment was to listen to alternative voices (from the perspective of the NPR audience), the interviewer did not interrupt her or otherwise press her on this point.

Had the interviewer interrupted, she might have noted that the observation is correct but a non sequitur. Nearly all participants in the debate over ACA repeal recognize that government-provided health insurance is not a constitutional right. That's why it took a statute to enact it. But neither is Social Security, Medicare, the Copyright Act, or the National Park system a matter of constitutional right. The observation that access to some government program or benefit is not a constitutional right has no bearing on whether the program or benefit is wise policy.

Perhaps the Trump supporter in the interview I heard was distorting what she had heard from a better-informed talking head on FoxNews? Based on what one finds on the Internet, that seems unlikely.

Googling "Health care is not a right" turns up a great many articles, but right at the top is a 1993 essay by Leonard Peikoff that was written in opposition to the proposal for health care reform from Hillary Clinton when she was First Lady. Peikoff is (like our Speaker of the Housea devotee of Ayn Rand. Thus, Peikoff asserts that government regulation or provision of health insurance is not only impractical but downright immoral. The core of what Peikoff wrote in 1993 still finds its way into most of the contemporary explanations of what people mean when they say "health care is not a right," and thus he can stand in for just about everyone now making the "not a right" claim, even those who are somewhat less extreme libertarians.

What is the core? Simply that a right to health care, unlike a right to free speech or a right to possess a firearm, is a positive right--a right to government assistance--rather than a negative right--a right against government interference. Peikoff and the contemporary opponents of government-provided or subsidized health care assert that only negative rights are real rights.

The argument fails before it even gets going. Some of the people who make the positive/negative distinction appear to think that as a conceptual matter, the term "right" can only refer to negative rights. This is preposterous. Many national constitutions contain not only negative rights, but positive rights--typically denominated "economic, social, and cultural rights." There is even a UN Treaty--the International Covenant on Economic, Social, and Cultural Rights--Article 12(d) of which commits the state parties to "[t]he creation of conditions which would assure to all medical service and medical attention in the event of sickness." The U.S. signed the treaty in 1977 but it was not ratified here. However, 165 other countries did ratify it. So much for the conceptual claim that positive rights are oxymoronic.

Ah, but does U.S. non-ratification demonstrate American exceptionalism? When right-wingers say that "health care is not a right" because it's a purported positive right, do they mean that it's an impossibility here? Quite likely they do, but that claim is also false.

For one thing, at least one of our constitutional rights is a positive right--namely the right of indigents to free counsel in criminal cases, found by the Supreme Court to be guaranteed by the Sixth Amendment in Gideon v. Wainwright. To be sure, it is possible to distinguish Gideon on the ground that the positive right is contingent in order to protect the negative rights to life and liberty: if the government wishes to deprive someone of life or liberty (by executing or imprisoning him), it can do so only after a fair trial, which requires competent counsel. Seen this way, maybe Gideon doesn't count.

But so what? It surely is not contrary to the American tradition as a whole to recognize any positive rights. Consider public education. The constitutions of all 50 states contain provisions that obligate the states to provide a free public education to minors. That obligation on the state functions as a positive right of students (and their parents) to the benefit.

Moreover, even if we were to concede that constitutions don't or shouldn't contain positive rights, it would hardly follow that legislatures should not create statutory rights to benefits (as noted above in my discussion of the NPR segment). Indeed, the most powerful argument typically offered against recognizing positive constitutional rights is that implementing positive rights requires complicated tradeoffs best suited for legislative (and administrative) judgment, not judicial decree on the basis of broad language. But that argument indicates that the legislature itself can make the complicated tradeoffs needed to specify statutory positive rights.

Thus, the claim that health care is not a right is mere flimflam.

That doesn't mean that the ACA or any other legal regime for the regulation and/or subsidization of health insurance is necessarily ideal policy. One could argue--as one commentator in The National Review argued recently using the "health care is not a right" trope--that the unregulated market does a better job of providing health care than do systems of public health insurance of the sort one finds in all advanced countries other than the United States. If that's the argument, conservatives should make it directly and honestly. They'll be dead wrong, of course. But at least it would be clear what they're saying.


Eric Charles said...

I think Rand and Peikoff are being consistent here since they supported "voluntary taxation", i.e., voluntary government (see her two essays, "Man's Rights" and "The Nature of Governemnt"). Health care is not a right just like food, clothing, housing, computers, transportation, and other things people want aren't rights. So pointing out that constitutions contain positive rights does nothing to undermine the concept of negative rights. This may be a complete BS argument but you did not address it. See Robert Nozick's Anarchy, State, Utopia for a serious discussion on tacit consent, anarchy, property rights, positive vs negative rights, etc.

David Ricardo said...

Mr. Dorf’s post here is excellent, but may even understate the case involving health care and basic rights. In the view of Randians (Ayn not son of Ron) the ACA not only establishes a right that is not a right, it takes away a basic human right. By requiring health insurance it interferes with the basic human right to not have health insurance. This is why repealing the individual mandate has been the highest priority of all of those opposed to ACA and why its repeal has been the one uncontroversial aspect of Republican policy.

If one listens carefully to Paul Ryan’s talking points on repeal, the issue of ‘rights’ is extremely prominent and his motivation against ACA is driven mostly by restoring rights to the American people. This is not a new position for conservatives. Opposition to Social Security is steeped in the thought that it deprives individuals of the right to retire without resources. Opposition to the minimum wage is justified because it takes away the right of an employee to work for whatever wage rate that employee is willing to accept. Opposition to child labor laws is based on the idea that it interferes with the right of a ten year old to work 6 days a week, 12 hours a day in a factory if indeed that is what the 10 year old wants to do.

Of course, really good health insurance is provided to all Republican legislators at every level of government, as all of those individuals have government sponsored and subsidized health insurance provided by their government employers.

Joe said...

The positive right discussion is on the money.

The Constitution provides the federal government various powers (over commerce, taxation, bankruptcy etc.) to provide a positive right to health insurance. As you note, state constitutions more directly protect rights to certain services deemed necessary for basic well being. Education is an example that is very important to good citizenship. I think good health insurance and services are to basic constitutional protections too. And, types of regulation (like selectively denying funding to certain providers like Planned Parenthood) could violate rights too. It all overlaps.

I do think certain positive rights are basic for human happiness and that a good society needs to have them. Some Ayn Rand types might disagree, but purity there is hard to come by. Ruth Bader Ginsburg, e.g., said modern national constitutions that do more to protect positive rights are an improvement over ours in a certain way.

Shag from Brookline said...

Republicans' antipathy towards ACA was to a great extent based upon what was perceived as a potential political advantage to Democrats, as were Social Security, Medicare and Medicaid, over years to come. Just as opposing Republicans railed against that trinity over the years, unsuccessfully, the Republicans tabbed the ACA as "Obamacare," as a pejorative, hoping it would stick in the minds of votes as to the socialism of America's first African-American President, whom many claimed was born in Kenya. This Republican tactic seemed to work as it operated hand in hand with Republicans' efforts to limit Obama to one term. These efforts failed. And as Obamacare worked its way through some mistakes and attracted more and more uninsured to the ranks of insured, who then experienced the benefits of the availability of healthcare, more and more came to believe in Obamacare. The Republicans' scores of efforts to repeal Obamacare failed because of Obama's veto availability. Eventually, with the 2016 presidential campaign, the Republican mantra on Obamacare, shifted to not just repealing Obamacare but replacing it with something better as a result of Trump's successful change of his Republican primary opponents. With Trump's winning of the general election and Republicans' continued control of Congress, repeal and replace Obamacare seemed to be a slam-dunk. The GOP bill that failed did not come up with better health care for even more insureds at cheaper costs, despite the fact that Republicans had 7 years to come up with a better plan to replace Obamacare. When voters who had benefitted as insureds under Obamacare came to understand the impact on them of the GOP repeal and replace, then rebelled via the first amendment. And they were successful, despite the fact that even President Trump backed Ryan's repeal and replace bill, despite the fact that the bill would have negative results for much of Trump's base.

With that background, Republicans who failed with their pejorative reference to ACA as Obamacare, have to consider a new approach as Obamacare's favorable ratings have climbed since the Nov. 8, 2016 election. Perhaps that new approach should be:

REPEAT and RENAME Obamacare

including a provision that it no longer be referred to as "Obamacare," subject to certain penalties (that might violate the first Amendment).

Joe said...

"So pointing out that constitutions contain positive rights does nothing to undermine the concept of negative rights."

Michael Dorf explains how "rights" goes beyond negative rights. I'm not sure what he isn't undermining here. The very concept rights go beyond negative rights? Maybe, "rights" should have a special symbol next to it like "marriage." The actual dictionary definition of the term is broad and comes in various categories.

CJColucci said...

For certain subsets of the concept of a "right," it is a trivial exercise to show that something or other that somebody wants is not a "right." There may be good reasons, for some purposes, to adopt a concept of "right" that treats some things as "rights" and not others -- for example, whether there should be a judicially-enforcible right to say mean things about the President raises many different concerns than whether there should be a judicially-enforcible right to food. But it is the purposes and circumstances that do the heavy lifting, not a stipulated subset "right" that answers the question by definition. Health care is a "right" if we make it one, and we make it one if enough of us want it to be one.

Joseph said...

If a legislator proposed that there is a "right" to possess firearms, in the sense that the government should provide firearms to anyone wishing to own one, I would think it entirely reasonable for someone to respond that there is no such right (and if they win that debate, well then there isn't one). The discussion of "positive rights" and "negative rights," while not technically incorrect, does more to muddy than clarify.

Wrapping up a policy goal in the language of rights is supposed to add moral weight. One might slap the label "right" on any government program and when the other side objects to the rhetoric, tell them their objection is a non sequitur.

Calling something a "right" is intended to short circuit debate and it's no wonder that it does. If there is to be a debate whether Americans are better served by a private system or a public system, then that should be the debate. Calling something a "right" would seem to be a non sequitur no less than objecting to that label. The battle is as rhetorical as it is philosophical.

Steve Davis said...

I agree that one can, if one chooses, conceive of health care as something to which one can have a right, in a very loose sense, at least, but it doesn't follow from that to say that the conservative position that health care is not a right is flim flam. The analogy to the right to counsel isn't apt, because that is a right that pops up in a very specific context -- when the state is threatening to take away your freedom. That isn't the case with respect to health care.

I tend to believe we should conceive of rights narrowly, and I think the classic liberal theory of negative rights does this appropriately. A compelling reason is that, with respect to goods like health care, or national parks, or education, we should hold open the possibility that conceiving of these things as rights may NOT be the socially optimal way to deliver them. Are clothing, housing, and food basic "rights"? If we say so, and charge government with a legally enforceable obligation to deliver them, we may (and as a libertarian I believe we will) find that the actual total net benefit to society decreases rather than increases -- that the people as a whole actually will get less of the very thing that we say it is their right to have. Reasonable people can disagree about that. But conceiving of these things as rights, in the same sense that "freedom of speech" is a right, eliminates the flexibility we may want to have as a society in deciding how we want to provide these things. We may decide that we are better off as a whole not thinking of these things as rights at all; at the least, we should retain the flexibility to not think this way. I tend to think that conceiving of health care as a right is foolish as a matter of public policy, as is the case with nearly everything we might think of as a "positive" right.

Another strong reason for not recognizing positive rights is that the delineation of those rights is a much harder and more unstable thing that delineating negative rights. What does it mean to have a right to health care? How does one balance that right with the doctor's right to practice medicine as he/she wants to? What does one have a right TO? How many operations? What drugs, and how many? There can be no long-term stable answers to these questions, because the nature of health care changes so rapidly. If you believe, as I do, that a market-based society will result in the fastest improvement in the quality of health care and the most rapid penetration of new technology to all segments of the population (the high tech sector is a good model for this), then there will be a gap between a) what people, generally, actually get in the market-based society, v. b) what people have a right to, in the positive rights-based society, and that gap will not favor the regime of positive rights. It's better to leave to the workings of a free and voluntary-based society what "stuff" people are "entitled" to. Which is not to say government can't have a role in providing certain basic services; it's just that thinking of them as things to which one has rights isn't the best way to go.

Eric Charles said...

Dorf's argument fails at this point:

"The argument fails before it even gets going. Some of the people who make the positive/negative distinction appear to think that as a conceptual matter, the term "right" can only refer to negative rights. This is preposterous. Many national constitutions contain not only negative rights, but positive rights--typically denominated "economic, social, and cultural rights."

The argument doesn't fail before it starts because Dorf fails to address it. It is true that there is a difference between positive and negative rights in the philosophical literature. And it is true that both sides have merits. But it doesn't fail for the reason that Dorf gives (that some constitutions have positive rights some how disproves the theory of negative rights). If negative rights are valid, then positive rights in constitutions are invalid/unjust.

Steve Davis said...

I agree, too, with wolflarson71's point that you don't really explain why it's "preposterous" to say that as a conceptual matter only negative rights can be "real" rights. The fact that a state says that it is is not proof that conceptually it works.

I don't happen to go quite that far, but my view is that spending time talking about what's "conceptually possible" is getting caught in the weeds. I believe there are significant conceptual problems with theories of positive rights that negative rights theories don't pose, but ultimately the real question is the normative one: what "should" we recognize as a right? On this ground, reasonable people can disagree, but it's not correct that the argument against recognizing rights is "flim flam."

Joe said...

Calling something a "right" is intended to short circuit debate and it's no wonder that it does.

This is often true but it shouldn't be. Freedom of speech is a right. There is a lot of rightful debate over what it entails. I think "right" is better symbolically seen as something with special importance that warrants careful treatment.

(Per my last comment ... bankruptcy is cited in the Constitution. The basic concept involves the state giving people a positive right affecting other people's property. Of course, we can debate the validity of it.)

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Michael C. Dorf said...

Thanks to Joe for clarifying/reiterating my argument, which is NOT that "health care is a right," but that the statement "health care is not a right" is being used to score unearned points in the current debate by disguising semantic claims as substantive claims.

Here's the logic of the position I'm critiquing:
1) Only negative rights are real rights.
2) Health care is a positive right, thus not a real right.
3) Therefore, government should not create (or continue in force) a program that gives people a statutory right (also sometimes called an entitlement) to health care.

The reason I say that the argument fails before it gets going is because all the work is being done by step 1), which is a linguistic claim. It is indeed preposterous as a linguistic claim--as even the commenters here who disagree with me illustrate by referring to "positive rights" rather than by some other term. They fully understand that the term "positive rights" refers to a real thing. They just happen not to like that thing. But then they need and should make an argument to that effect.

Steve Davis makes two such arguments. First, he says that as a psychological matter, thinking of various government programs that cost money as (positive) "rights" will undermine useful legislative flexibility. Maybe, but if so, that has little to do with the current debate. The ACA does not call health care a "right," so it already avoids the psychological pitfall to which Steve points. True, some people--e.g., Bernie Sanders--say that "health care is a right." But as I said above, that's not my position.

Steve's second point is the one that in the post I called "dead wrong," with a link to a 2014 Forbes article finding that countries with much greater government involvement in health care provide better outcomes for less money than the U.S. That's not because Steve is wrong that in general the free market does a good job at providing people with goods and services. It's because the market for health care is different from many other markets, given information asymmetry and other factors. But to reiterate, in making his second point Steve is accepting my invitation to have the right debate--about what mix of public and private involvement in the health care market is optimal as a policy matter. The wrong debate is a semantic debate over the meaning of a "right."

Eric Charles said...

Read his argument again. He identifies negative rights and then dismisses them as "preposterous" by pointing to a treatise the U.S signed that recognizes positive rights. Well so what? That governments recognize positive rights says nothing about their validity. The constitution recognized the positive right to slave ownership, does that prove its "conceptual" (whatever this means) validity?

What can be said is that Ryan and Republicans are hypocrites if they claim health care is not a right on moral grounds but support a host of other state entitlements.

Or maybe some like Ryan are saying health care is not a constitutional right on legal (not moral) grounds?

Dorf's argument is just a mess unfortunately.

David Ricardo said...

With respect to ‘positive rights’ one could argue that there are de facto rights and de jure rights. The positive de jure rights in the Constitution include the right to own firearms, the right to counsel in the event one is charged with a criminal act, the right to due process etc. De facto rights are rights that have evolved over time and so inserted themselves into the fabric of society that they have become rights. The right to a free public 12 year primary and secondary educaction is one such right.

Health care is a right in both camps. Federal law requires that hospitals treat anyone who comes into their building regardless of their ability to pay. And in America we have embraced the de facto right that no one should suffer and die because they cannot afford health care. So the question with respect to ACA and ACHA is not that health care is a right, but how to provide for that right in the most efficient and effective manner.

So to expand on Shag’s comment ACHA not only failed as a political issue it failed as a policy issue. Both before and after the election Trump promised to replace ACA individual coverage with a program that (1) covered more individuals, (2) covered more treatment and procedures and (3) cost less. This is impossible, that only could exist in Trumpworld, not in the real world. One can replace ACA and do one of these things, one can even do two, but one cannot do all three. The amazing thing about AHCA is that it did none of the three. Yep, amazing but true

Eric Charles said...

Here's the logic of the position I'm critiquing:
1) Only negative rights are real rights.

But you didn't provide any evidence that people are making this argument other than Peikoff. You said some woman mentioned health care is not a "constitutional right" (maybe she was a constitutional professor who disagreed with the mandate on technical grounds) but this is entirely different from a normative claim about negative rights.

Joe said...

[I had a longer reply among my responses going in detail regarding various types of rights, citing Madison etc., but decided enough was said.]

Michael C. Dorf said...

I shall assume that wolflarson71's latest comment was composed before he had a chance to read my comment posted one minute earlier than his. Still, I cannot resist pointing out the irony that in a single comment, wolflarson71 says that my "argument is just a mess" and demonstrates his own misunderstanding of the basic terms we're debating when he also says: "The constitution recognized the positive right to slave ownership, does that prove its 'conceptual' (whatever this means) validity?" The Constitution never recognized a positive right to slave ownership. If it had, that would mean that the federal government provided people with slaves. The antebellum Constitution recognized (albeit only tacitly via the Fugitive Slave Clause, the 3/5 Compromise, and other provisions) a negative right to slavery.

That said, the underlying point wolflarson71 makes is sound. He says: "That governments recognize positive rights says nothing about their validity," by which he presumably means that such recognition says nothing about their morality or desirability. Yes, of course. I was not saying otherwise. What I was saying was that the semantic (or conceptual) point that the people I was criticizing made is false.

Finally, in philosophy a "conceptual" claim is one that purports to be true as a matter of expounding the meaning of a concept rather than a normative claim or a claim that is subject to empirical verification. It is sometimes used as a synonym for a priori truth. This is a blog for a mixed audience of academics, lawyers, and laypeople. I sometimes use specialized language from law or academic disciplines.

Michael C. Dorf said...

My reference above to wolflarson71's "latest comment" refers to the one before his most recent one, due to the lag in composition and posting. I'll leave his actual latest comment alone. This is a blog. I don't provide footnotes, although I do provide links when they are handy. Thanks to everyone for engaging with this post. Let's all move on.

Eric Charles said...

I agree it didn’t recognize a positive right to a slave but the point is still the same assuming it did or some form of legislation did.

My impression is that you saw someone claim health wasn’t a right (although it’s still unclear if they were making a moral or legal claim) and then you stumbled across Peikoff’s article that you thought my have some influence outside of Randian circles. I highly doubt that though even if Ryan claims to be an admirer of Rand (so does Hillary Clinton by the way) since I'm sure Ryan believes in taxation (negative rights imply a lack on coercive taxation).

Anyway...moving on.

Joseph said...

"Let's all move on."

Never will a more ambitious statement be made!