Should America create a broad right to health care? Americans already have a limited right to health care under the Emergency Medical Treatment and Active Labor Act, commonly known as EMTALA. Medicare-participating hospitals must provide emergency screening and stabilizing health care regardless of ability to pay. The leading Democratic presidential candidates support the creation of a broad “right to health care” through “Medicare for All” proposals.
Rights cannot exist without corresponding duties. Creating a right to health care raises two important questions. First, are we are willing to take on the collective responsibility — pay the taxes — necessary to pay for this new right? Second, are we willing to give up our individual freedom, liberty and autonomy? The second question is my focus here.
The right to health care — the right to almost anything — sounds good. This is because we tend to focus first on what we’re going to get, rather than on what we have to give up. To make a good decision we must look closely at the different types of rights, positive and negative, the duties that they require and the necessary trade-off between the individual freedom lost and the collective good likely to be gained.
Individual negative rights ensure that individuals will be free from interference from governments and/or other individuals. For example, the majority of the rights created by the U.S. Constitution are negative. The First Amendment establishes freedom of speech, association, press, petition and religion. These are all negative rights. Citizens have a right to be free from governmental interference with respect to their speech, association, religion, etc. The corresponding societal, governmental, duty is to leave the right-holder free from interference.
Individual positive rights impose a corresponding duty on society, the government, to provide the right-holder with something — e.g., health care. Positive rights are much less common than negative rights, and for good reason. Negative rights increase individual freedom and liberty, while positive rights decrease individual freedom and liberty.
Also, negative individual rights create positive societal rights and vice versa. In other words, my negative right to religious freedom means that society has the right to expect me to find salvation on my own.
On the other hand, an individual positive right to health care creates a negative societal right. Negative rights permit or oblige inaction. In this case, society has the right to my inaction with regard to my own health care. In other words, in some cases when a positive right is created the individual must accept it. The Medicare for all proposals prohibit private health insurance, thus requiring individuals to accept the health care provided by the government and give up control over their own health care.
The loss of individual freedom is the reason individual positive rights are, and should be, very limited. An additional problem with the creation of positive rights is that they necessarily increase the power, size and influence of government.
Positive rights increase social interdependence of community members, but they do so at the cost of individual autonomy, freedom and liberty. In a particular case, such as health care, whether the creation of an individual positive right makes sense depends upon the value citizens place on individual rights versus collective rights, and the faith they have in government.
Certainly, health care is extremely important but so are food, shelter and transportation. Who would want the government to be the only provider of food, shelter or transportation? Think for a moment about government-issued houses, food or cars. Would you want any of these?
The fundamental question regarding the creation of a positive right is whether it is worth the necessary loss of individual freedom. To those who greatly value individual freedom, government is a necessary evil and the answer rarely will be yes. Ironically, although government is necessary for the creation of individual negative rights, it also is the greatest threat to individual liberty. In fact, this is the reason for the Bill of (negative) Rights.
In the end the issue is whether we are willing to jeopardize our liberty in exchange for the cold comfort that comes from the belief that the government, like an ageless parent, will look after us and that we will be relieved of any personal responsibility for our own welfare. It is a dangerous and slippery slope, and movement on it occurs in only one direction.
George A. Nation III is a professor of law and business in the Perella Department of Finance at Lehigh University. Prior to his academic career, he practiced corporate and commercial law in Philadelphia. His recent research concerns health care policy and pricing.