Sunday, February 8, 2009

Positive and Negative Rights

In the United States there is a strong moral tradition that favors rights-based discourse over public policy. Given that this tradition is usually invoked without much philosophical clarity, let’s take a closer look. First of all, rights-based claims imply duties imposed upon others. There are no rights without corresponding duties. Failure to fulfill one’s duty constitutes a rights violation. Libertarians differentiate between two classes of right-based claims. If you claim a positive right, you are implying that another individual or community has a duty to expend time, energy, and/or resources on your behalf. For example, if you have an unqualified positive right to vote, but are unable to get to the polling place, then someone else must have a duty to pick you up at your house, bring you to the polling place, and then bring you home. Positive rights raise a number of puzzles. Suppose you are “able” to get to the polls, but are “unwilling” to expend your own time, energy, and/or resources to get to there. How might that affect the duties of others? Hence, if you invoke positive rights, you must specify how much of your own, time, effort and resources will be expended before a duty upon others is imposed. In short, there is always a grayish area between “able” and “willing.” If you live a half-mile away and are “physically able” to walk to the polling place, but are unwilling to do it, does the duty on the part of others automatically kick in? If so, then how does one decide exactly whose duty it is to drive you to the polling place, and how much of their time, effort, and/or resources are morally required to fulfill that duty. If you claim a negative right, then you are merely imposing a duty on the part of others to not interfere with your own efforts to act on your own behalf. If you have a negative right to vote, it implies a duty on the part of others to not interfere with your quest to get yourself to the polling place. Obviously, if I tried to forcefully prevent you from voting by either physically restraining you or by threatening you, then that would clearly invade your negative right to vote. That’s why poll taxes are widely regarded as rights violations. (Interestingly, no one questions whether the U.S government’s failure to declare Election Day a national holiday constitutes a voting rights violation.) Generally speaking, we are more likely to claim a positive right when we believe that we really need something than when we merely want something. Most of us are willing to accept the fact that the distribution of at least some of the good things in life are best left to the free market, while at least some things ought to made available to us through the good will of others, as a matter of duty. Americans do not have a positive right to own a Mercedes, ocean front property in Florida, or a Harvard education. But they do have a negative right to pursue those things without outside governmental interference. Finally, there is one more dimension to rights-based claims; namely, “How will that positive or negative right be monitored and enforced? If you have a positive or negative legal right, then that right is monitored and enforced by government. If you have a moral right, then compliance will be enforced by a moral community alone. Sometimes the duties that support rights are sufficiently supported by morality and sometimes legality is necessary. That’s why our most important rights are legally enforced. Libertarians argue that there are no positive rights, only negative rights.

Is There a "Positive Right" to Health Care?

The “Right to Health Care” will be one of the mantras of the forthcoming debate over health care reform. Let’s explore that mantra in light of my previous blog. Obviously, we must address several issues. Do we have a right to health care? If so, who has a duty to fulfill that right? Is the right to health care a positive or a negative right? If it is a positive right, then who has the duty to provide it, and at what cost? And, is this positive right a legal right or a moral right? There are several options. Many argue based on the Hippocratic Oath that under “certain circumstances” health care providers have a duty to provide health care to others. But what are those “certain circumstances?” Well, one might argue that the "duty to provide" kicks in when a patient “needs” medical treatment but is “unable” to afford it. However, recall that the line between “unable” and “unwilling” is murky at best. Many young healthy Americans are “able” to purchase health insurance, but are “unwilling” make the economic sacrifices necessary to pay the premiums. (Forego buying that new car or new house while still in college!) If a health care provider has a duty to provide health care, does fulfilling that duty imply providing it for free or at a discount rate? If providers of health care do not have a duty to provide health care, then what about other third parties such as relatives, friends, employers, private insurance companies, and/or government? If it is a third party, which party and how much are they obligated to pay those second party providers? My mother-in-law is a cancer survivor. Hoping to prevent the return of cancer, her physician prescribed a drug called Aromasin. The drug costs about $10. per day. Interestingly, this drug is usually (if not always) prescribed to elderly female cancer-surviving patients. The safety and effectiveness of all drugs is expressed in terms of a cost/benefit ratio. Although the drug's stated purpose is to prevent her cancer from recurring, the statistical evidence in support of this claim was impossible for to decipher and act upon. Now, if she has a positive right to this drug then who has a duty to provide it? Here are some of her options: Medicare, her co-insurance company (the private insurance that covers the Medicare gaps), my father-in-law, my wife and I, or a charitable organization? She is almost certainly “able” to pay that $10 a day, if she and my father-in-law were “willing” to cut back on other things such as: their other prescription drugs, food, clothing, shelter, or transportation. Given the obscure cost/benefit ratios presented, she decided that the benefits did not justify the costs. Fortunately, a non-governmental organization the Susan G. Komen Foundation decided to pay for it. Although, everyone is thankful for that charitable intervention, one might reasonably question the price of that drug. Given that almost all of the patients likely to “need” this drug will be about in approximately the same economic situation as my mother-in-law, one might accuse the providers of monopolistic price-gouging. But libertarians are more inclined to blame the government for those overly-generous twenty-year drug patents and prescription drug laws that protect them from competition. There is something disingenuous about arguing that someone has a positive right to health care, and that third-parties have a duty to provide that care, when the providers are do not have a duty to moderate their prices. So what’s the lesson here? Well, maybe that whole eighteenth-century moral framework based on interlocking rights and duties is not a very illuminating in the area for twenty-first century health care.