Pretending Rights are Privileges: Just Another Day in American Healthcare

Pretending Rights are Privileges: Just Another Day in American Healthcare
By Clayton Becker

While the argument about whether health care is a right (the left says it is a right) or a privilege continues, Becker argues that in practice we have settled the issue: we have already recognized in the law that people have a right to health care in certain circumstances and that there is no moral difference between those cases and people’s normal circumstances.

“The Greatest Country in the World™.” That is what we call ourselves right? The shining city upon a hill. The United States has a lot going for it—we have one of the world’s most innovative economies, the greatest scientists on the planet, and of course Blue Jeans and Brooklyn Nine-Nine. But in other respects, we’re not doing well. This is most obvious with regard to the state of our healthcare system, which is among the worst in the developed world. While Europe was busy passing universal healthcare legislation decades ago, the United States never quite managed to get it off the ground. We’re still paying for that failure today.

Every year, tens of thousands of Americans die because they don’t have access to healthcare.i If lack of access to care were a disease in itself, it would be the 10th most common cause of death in the United States, just ahead of suicide and just below the flu, pneumonia, and diabetes.ii One analysis found that if the repeal of Obamacare had passed it would have resulted in more than 200,000 additional deaths by 2026.iii ‘Healthcare’ in America is nothing short of a public health disaster and a human rights catastrophe.

Yeah, that’s right, you read that correctly: A human rights catastrophe. This often strikes people as foolish, “How can we have a right to someone else’s work? I don’t have a right for someone to make me food or build me a house, do I? Those things are just as necessary as healthcare!” It is this line of thinking that has dominated the reaction to the emergence of healthcare as a human rights issue.iv In other words, healthcare can’t be a right because that would require us to have rights to someone else’s labor.

However, this critique, no matter how impassioned or wholeheartedly believed, misses the fact that we do have rights to other people’s labor in all sorts of domains, a couple of these rights have even become artifacts of our popular culture. Countless police procedurals end with the crook’s Miranda rights. A running gag is even made of it in 21 Jump Street.

We have the right to an attorney.

Boom. Someone’s labor to which we are entitled by the Constitution.

We have the right to a jury of our peers.

Boom. More labor.

We have the right to an education. Indeed, we are compelled to get an education.

You get the idea: Rights often require labor in order to be protected.

And, what’s more, we already recognize the fact that we have a right to healthcare. There are hospitals all over the United States where you cannot be denied care at emergency rooms due to your inability to pay upfront.

In the late 1980s, physicians began publishing accounts of a growing practice called “patient dumping.”v In response, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA). The act was intended to ensure that no one would be denied emergency care because they could not pay upfront.vi Thirty years later, if you go a hospital in an emergency, they are legally required to treat you or face severe financial penalties—held against both the hospital itself and the doctor who denied care.vii Of course, this healthcare might eventually bankrupt you, and it may be of limited quality, but you can get it.

It boils down to a basic calculus. If we believe that healthcare is a privilege, then we should stop giving healthcare to anyone and everyone who can’t show that they can pay for it in advance. If someone comes into an emergency room with a gunshot wound and they don’t have health insurance…well, I’m sure they’ll just walk it off. If a pregnant woman goes into labor unexpectedly…well, she can just have the baby in the cab she came in.

These scenarios are, of course, ludicrous to imagine. Only the most craven of political hacks would claim that we should not provide treatment to those whose lives are in mortal peril, those who will die if not treated immediately. What is the difference between a right to care when your life is in immediate danger, and surgery to remove a cancerous tumor before you ever get to the “mortal peril” stage? I do not believe that there is one, not morally speaking, not practically speaking.
The reason that we continue to provide care to people who are uninsured is that we don’t believe healthcare is a privilege. We have already decided that healthcare is a right. And if it is a right—like the right to free speech, free association, an attorney at trial, an education—then it is the responsibility of a just government to protect that right.

(Note: I should submit this Op-Ed to the Miami Herald because the Miami metro area has the highest uninsured rate in the country. I believe that this piece is of particular importance to that paper’s readers.)

i David Cecere. “New Study Finds 45,000 Deaths Annually Linked to Lack of Health Coverage.” Harvard Gazette (blog), September 17, 2009. https://news.harvard.edu/gazette/story/2009/09/new-study-finds-45000-dea....
ii Centers for Disease Control and Prevention. “Table 19. Leading Causes of Death and Numbers of Deaths, by Sex, Race, and Hispanic Origin: United States, 1980 and 2016.” Health, United States, 2017.
iii Kawachi, Ichiro, Ann Crawford-Roberts, and Nichole Roxas. “208,500 Additional Deaths Could Occur by 2026 under the Senate Health Plan.” Vox, June 28, 2017. https://www.vox.com/the-big-idea/2017/6/28/15881720/deaths-senate-health....iv Eli Steinberg. “Ted Cruz Is Right: You Don’t Have A Right To Health Care.” The Federalist, February 10, 2017. http://thefederalist.com/2017/02/10/ted-cruz-right-dont-right-health-care/.
v Ansell, David A., and Robert L. Schiff. “Patient Dumping: Status, Implications, and Policy Recommendations.” JAMA 257, no. 11 (March 20, 1987): 1500–1502. https://doi.org/10.1001/jama.1987.03390110076030.
vi Centers for Medicare and Medicaid Services. “Emergency Medical Treatment & Labor Act (EMTALA).” March 26, 2012. https://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/.
vii Cornell University Legal Information Institute. “42 U.S. Code § 1395dd - Examination and Treatment for Emergency Medical Conditions and Women in Labor.” LII / Legal Information Institute. Accessed February 8, 2019. https://www.law.cornell.edu/uscode/text/42/1395dd.