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.