Is There a Right to Health Care?
Miguel A. Faria, Jr., M.D.
In a recent editorial, Frank Davidoff, M.D., Editor of the Annals of Internal Medicine (AIM) and Robert D. Reinecke, M.D. of the Jefferson Medical College have called for a 28th Amendment to the U.S. Constitution to establish universal health care as a right.(1) It was trumpeted in a "Dear Health Care Colleague" letter by Ira Hellander, M.D., Executive Director of Physicians for a National Health Program (PNHP).(2) The Amendment would read in part, "All citizens and other residents of the United States shall have equal access to basic and essential health care."
But is health care really a basic human right? Does an individual have a right to health care? Let's say categorically that health care is not a right. Why? Because a right to medical care imposes an obligation on a physician to provide a service to anyone and everyone with whom he or she has not even had an established professional relationship. What about the indigent? The fact is that still today, as through every era of medical history, indigent patients have been taken care of by physicians with dignity and compassion in the name of genuine charity, pro bono.
Before government began its relentless campaign against the medical profession (which has been intensified in the last decade), physicians were happy to treat indigent patients as something that came along with the territory. Government money in the form of Medicare, Medicaid, and now state children's programs is ending all of that. The persecution and prosecution of physicians for alleged fraud and abuse has further eroded the patient-doctor relationship with senior citizens being called upon by the government to become bounty hunters against their own doctors. This police state of medicine has been enacted for the usual reasons (e.g., coercion and intimidation as to make physicians more compliant to the increasingly draconian rules and regulations), as well as to replenish the previously exhausting Medicare coffers.
Already, when physicians get up in the middle of the night to provide a charitable emergency room service or an urgent consultation, because of the creeping, alleged right to medical care, the patients have come to believe they owe the physician nothing. They believe they are entitled to a service for which they have no claim upon the physician; there was only the self-imposed duties and professional obligations and traditions of a venerable profession, where members have been inducted after answering a sacred calling. Moreover, rather than getting paid for the fruits of his labor or the agreed-upon price on the value of his services, a physician today is paid, if at all, at discounted HMO or government dictated prices --- in part, because of greed on the part of the HMOs; in part, because of the government push for cost containment; and in part, because of this erroneous, socialistic concept of health (or medical) care as a right.
These influential medical writers mention the United Nations Charter as an exemplar of human rights. It's not. UN rights are a deceptive illusion. Natural rights are God-given or nature derived, not government granted as is the case with UN rights. True natural rights are intrinsic to our humanity. The UN enumerates a myriad of rights in the various charters only to qualify them out of existence in the same document, a few sentences later. Take for instance, the 1966 UN International Covenants on Civil and Political Rights granting the rights to freedom of thought, conscience, and religion...subject only to such limitations "that are prescribed by law and are necessary."(3) [Emphasis added.]
You see, in UN documents, rights are granted but then are subject to arbitrary cancellation by government under UN authorities - sometimes in the same paragraph in which the rights are granted. The same is the case with the 1948 UN Universal Declaration of Human Rights, which after enumerating a myriad of "rights and freedoms" states, "these rights and freedoms may in no case be exercised contrary to the purpose and principles of the UN."(4)
That is not the case with genuine basic rights to life, liberty, property, and the pursuit of happiness as stated in our Declaration of Independence and our U.S. Constitution, which are stated to be God-given or nature derived and which cannot be taken away arbitrarily by the state. And, that is why our First Amendment states that "Congress shall make no law" regarding those natural rights, in contrast to the UN rights.
When Thomas Jefferson wrote the Declaration of Independence, he followed a path blazed by John Locke (1632-1704) which extended as far back as Medieval philosopher and scholar St. Thomas Aquinas (1225-1274) and even the Roman statesman Cicero (108-43 BC) to the philosophical tenets of the natural rights of citizens, the basic rights to life, liberty and property.(5) St. Thomas Aquinas recognized the fact that if human law "deflects from the law of nature, it is unjust and is no longer a law but a perversion of law." And Cicero, who did not believe in a Judeo-Christian God, but recognized natural law, predicated that the power of the state be limited.(6) He wrote:
[W]hat is right and true is also eternal, and does not begin or end with written statutes....From this point of view it can be readily understood that those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but "laws." It may thus be clear that in the very definition of the term "law" there inheres the idea and principle of choosing what is just and true....Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to nature's standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good.(6)
Moreover, in our own American Republic, Alexander Hamilton (1755-1804), the American patriot who led the heroic charge against the entrenched British at Yorktown in 1781, asserted, "No tribunal, no codes, no systems can repeal or impair this law of God, for by His eternal laws it is inherent in the nature of things."(6)
"Traditional legal rights," according to Professor Iredell Jenkins of the University of Alabama Law School, "are primarily protective: they guarantee citizens certain basic freedoms and immunities, and protect them against intrusion or arbitrary action by the state. These rights do not bestow any positive benefits upon the people...these traditional rights are not conferred on citizens by the state; rather, the people hold these rights prior to and independently of the state, which is merely enjoined to respect them and assure their free exercise."(7)
Natural rights embody the concept of individual autonomy and negative rights that are inalienable and inherent to human beings. Natural rights (e.g., life, liberty, the owning and disposing of property, and the pursuit of health, occupation --- and happiness), like human rights, can be exercised by all individuals simultaneously without infringing and trampling on the rights of others (i.e., negative rights concept). When governments transcend these rights with welfare rights, entitlements, and redistribution of wealth schemes --- in the name of compassion, utilitarianism, or some greater common good --- it squarely infringes upon the autonomy and basic rights of individuals and corrupts the negative concept of the law.(5)
The French statesman, Frederic Bastiat (1801-1850) in his monumental book The Law wrote that negative laws impose nothing upon the individual, but a mere negation of unjust actions. "[The laws] oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor, his property. They safeguard all of these. They are defensive; they defend equally the rights of all." Moreover, "when the law, by means of its necessary agent, force, imposing upon men a regulation of labor, and method or subject of education or religious faith or creed --- then the law is no longer negative. It acts positively upon people. It substitutes the will of the legislature for their own will."(8)
It has been stated that the welfare clause in the Preamble to the U.S. Constitution authorizes Congress to distribute entitlements and redistribute wealth. But in discussing this clause, Thomas Jefferson wrote, "a distinct substantive power, to do any act which might tend to the general welfare, is to render all the enumerations [of their specific constitutional powers] useless, and to make their power unlimited." And James Madison, the Father of the Constitution, in a letter to Edmund Pendleton dated January 21, 1792, wrote: "[If] Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."(9)
The unintended consequences of this federal creation of a myriad of welfare rights and entitlements is that government is forging dependency upon one class of citizens and oppression on another; and in the case of health care, it's building the keystone of the arch of socialism using government medicine as the scaffold.(5)
Medical care as a right would require physicians to provide their services while violating their professional code of free association and negating their legal prerogative to participate in voluntary binding agreements --- i.e., the legal basis for the establishment of the patient-doctor relationship, as well as our professional and ethical bases according to the Oath and ethics of Hippocrates. It would also set the precedent that physicians will be bound by whatever standards are set by the state. This action not only infringes upon a physician's autonomy, but also, as Frederic Bastiat asserted over a century ago, constitutes legal plunder and organized injustice.(8) The physician becomes an indentured servant bound to the state. Moreover, the patient owes the physician no gratitude for his/her labors because they are supposedly entitled by right to his/her labors.(5)
Health care is not a right, just as there are no rights to shelter (housing), clothing, food, or a paid vacation to Acapulco or Miami Beach. In essence, no individual is entitled to the services or the fruits of another's labor without just compensation. Physicians should be free to offer their services free of government coercion and, at least in theory, on whatever terms he or she chooses. As Objectivist philosopher, David Kelley, points out:
A right is a principle that specifies something which an individual should be free to have or do. A right is an entitlement, something one possesses free and clear, something one can exercise without asking anyone else's permission. Since it is not a privilege or favor, we do not owe anyone else any gratitude for their recognition of our rights. But there is no such right [to medical care]. There cannot be --- not in a free society which recognizes the genuine rights of individuals to their own autonomy.(10)
If the state genuinely wants universal coverage, while preserving quality and freedom of choice, then it should provide the proper, free-market, voluntary incentives for both patients and doctors to pursue those goals without violating the autonomy of either the patient or the doctor, or the sanctity and trust of the patient-doctor relationship. And if health care costs more and seems less affordable, that should be enough of a reason to deregulate the insurance industry and educate the people as to the need for catastrophic coverage via true indemnity insurance which should be made widely available along with tax-free Medical Savings Accounts (MSAs).
We will never have "freedom from fear" or "freedom from
want." And life will never be risk free, notwithstanding what you have
been led to believe by authoritarian do-gooders. Complete security can only
be found, as my friend Dr. Nino Camardese has pointed out, in a maximum
security prison. And even there, total security is just a pipe dream as
was amply demonstrated in the communist gulags of the former Soviet Union
and Eastern European dictatorships. Govern-ments of these workers' paradises
murdered millions of their own citizens while deluding them with the false
illusion of complete security, including cradle-to-grave health care ---
health care as a right.
1. Davidoff F, Reinecke RD. The 28th amendment. Annals of Internal Medicine,
20 April 1999, 130:292-294.
2. Hellander I. "Dear Health Care Colleagues" letter. Physicians for a National Health Program, April 23, 1999.
3. United Nations International Covenants on Civil and Political Rights, Articles 18-22, 1966.
4. United Nations Declaration of Human Rights, Article 29, Paragraph 3, 1948.
5. Faria MA Jr. Health care as a right. Medical Warrior: Fighting Corporate Socialized Medicine. Macon, Georgia, Hacienda Publishing, Inc., 1997, pp.94-103.
6. Rice, CE. Gift from God-basic rights transcend the state! The New American, May 3, 1993. Quoted in Medical Warrior, p. 98.
7. Jenkins I. The concept of rights and the competence of courts. American Journal of Jurisprudence 1973. Quoted in Medical Warrior, p. 96.
8. Bastiat F. The Law (1850). Reprinted by The Foundation for Economic Education, Inc. (1990), Irvington-on-Hudson, NY, pp.5-54.
9. T. Jefferson and J. Madison cited by Robert W. Lee in Collectivist cliches. The New American, July 13, 1992 quoted in Medical Warrior, p. 99.
10. Kelley D. Is medical care a right? View from the right. J Med Assoc Ga 1993;82(11) quoted in Medical Warrior, pp. 98-99.
Dr. Faria is a consultant neurosurgeon and author of Vandals at the Gates of Medicine (Macon, Georgia, Hacienda Publishing, Inc., 1995) and Medical Warrior: Fighting Corporate Socialized Medicine (Macon, Georgia, Hacienda Publishing, Inc., 1997). He serves as Editor-in-Chief of the Medical Sentinel, the official journal of the Association of American Physicians and Surgeons (AAPS).
This article was published in the Medical Sentinel, Volume 4, Number 4, July/August 1999, pp. 125-127.