Is There A Right To Health Care?

Editor's Note: The following is the text of a speech delivered by David Kelley at multiple venues in 1993-94. Its theme remains relevant today, especially with the advent of "Obamacare."

Bill Clinton ran for president last year by attacking the 1980s as a "decade of greed" —attacking the leveraged buyouts and hostile takeovers engineered by Wall Street financiers. I happen to think this trend in the 1980s was a good thing, a productive realignment in American business. But be that as it may, the irony is that President Clinton is now proposing a hostile takeover of his own, a hostile takeover on a scale far beyond anything that Wall Street capitalists ever dreamed of, a hostile takeover of one seventh of the nation's economy. I'm referring, of course, to his recently announced plan for health care "reform."

The Clinton plan in its present form involves a massive exercise of coercion against physicians, employers, and patients alike. Most people will be forced to do business through health insurance purchasing cooperatives: government-backed monopolies that collect payments from consumers and set the terms on which producers can offer their services. Everyone will be forced to buy health care through these monopolies, with employers forced to pay the lion's share of the bill. Physicians, hospitals, and HMOs will be prohibited from dealing with patients directly; they will be forced to offer their services through the purchasing cooperatives, subject to highly restrictive rules.

Every right imposes some obligation on others.

What has brought us to this state of affairs? Socialism has collapsed in the Soviet Union. The nations of Western Europe are trying to trim back their welfare states, desperately looking for ways to privatize. Yet in this country we are on the brink of a massive increase in government subsidies and government controls. Why?

The full story is a long and complicated one, but the essential cause, I think, is simple. The essential cause is the assumption that if people have medical needs which are not being met, it is society's responsibility to meet them. In the current debate over health care reform, universal access has become the unquestioned goal, to which all other considerations may be sacrificed. The assumption is that the needs of recipients take precedence over the rights of physicians, hospitals, insurers and drug companies—the producers of health care, the people who deliver the goods—along with the rights of the taxpayers who are going to have to pay for it. In other words, those with the ability to provide health care are obliged to serve, while those with a need for health care are entitled to make demands.

Indeed, it is often said that the need for health care constitutes a right. President Clinton campaigned with the slogan, "Health care should be a right, not a privilege." Opinion polls regularly show that the belief in such a right is widespread, even within the medical profession. The AMA's "Patient's Bill of Rights" includes the statement that patients have a "right to essential health care."

If health care is a right, then government is responsible for seeing that everyone has access to it, just as the right to property means that government must protect us against theft. For the past thirty years, the idea that people have a right to health care has led to greater and greater government control over the medical profession and the health care industry. The needs of the indigent, the needs of the uninsured, the needs of the elderly, among other groups, have been put forward as claims on public resources. Government has responded by subsidizing these groups, and regulating physicians, insurers, and pharmaceutical companies on their behalf. Now the Clinton Administration proposes to make this right universal, to create a universal entitlement, and to vastly expand government control.

In this context, I can state my own point in a sentence: there is no such right. I will show you why the attempt to implement this alleged right leads in practice to the suspension of the genuine rights of doctors, patients, and the public at large. And I will show why the concept of such a right is corrupt in theory. I want to stress at the outset the importance of this issue. The long-term direction of public policy is not set by electoral politics, or by horse-trading in Congress, or by this or that court case. In the long term, at a basic level, public policy is set by ideas—ideas about things are just and worthy, what rights and obligations we have as individuals. The idea that people have a right to health care is inimical to our genuine liberties. The policies that flow from that idea are harmful to the interests of doctors and patients alike. To fight against those policies, we have to attack their root.

Liberty vs. Welfare Rights

Let's begin by defining our terms. A right is a principle that specifies something which an individual should be free to have or do. A right is an entitlement, something you possess free and clear, something you can exercise without asking anyone else's permission. Because it is an entitlement, not a privilege or favor, we do not owe anyone else any gratitude for their recognition of our rights.

When we speak of rights, we invoke a concept that is fundamental to our political system. Our country was founded on the principle that individuals possess the "inalienable rights to life, liberty, and the pursuit of happiness." Along with the right to property, which the Founding Fathers also regarded as fundamental, these rights are known as liberty rights, because they protect the right to act freely. The wording of the Declaration of Independence is quite precise in this regard. It attributes to us the right to the pursuit of happiness, not to happiness per se. Society can't guarantee us happiness; that's our own responsibility. All it can guarantee is the freedom to pursue it. In the same way, the right to life is the right to act freely for one's self-preservation. It is not a right to be immune from death by natural causes, even an untimely death. And the right to property is the right to act freely in the effort to acquire wealth, the right to buy and sell and keep the fruits of one's labor. It is not a right to expect to be given wealth.

The purpose of liberty rights is to protect individual autonomy. They leave individuals responsible for their own lives, for meeting their own needs. But they provide us with the social conditions we need to carry out that responsibility: the freedom to act on the basis of our own judgment, in pursuit of our own ends; and the right to use and dispose of the material resources we have acquired by our efforts. These rights reflect the assumption that individuals are ends in themselves, who may not be used against their will for social purposes.

A doctor who waives his bill because I am indigent is offering a free gift; he retains his autonomy.

Let us consider what liberty rights mean in regard to medical care. If we implemented them fully, patients would be free to choose the type of care they want, and the particular health care providers they want to see, in accordance with their needs and resources. They would be free to choose whether they want health insurance, and if so, in what amounts. Doctors and other providers would be free to offer their services on whatever terms they choose. Prices would be governed not by government fiat, but by competition in a market. Since this is an imaginary state of affairs, no one can predict what mix of private practitioners, HMOs, and other sorts of health plans would emerge. But market forces would tend to ensure that patients have more choices than they do now, that they would act more responsibly than many do at present, and that they would pay actuarially fair prices for health insurance—prices that reflect the actual risks associated with their age, physical condition, and lifestyle. No one would be able to shift his costs onto someone else. In a truly free market, I might add, there would be no tax preference for obtaining health insurance through employers, so most people would probably buy health insurance the way they buy life insurance, auto insurance, or homeowners insurance—directly from insurance companies. They would not have to fear that losing their job, or changing the job, would mean losing their coverage.

So that is what liberty rights—the classical rights to life, liberty, and property—would mean in practice. The so-called "right" to medical care is quite different. It is not merely the right to act—i.e., to seek medical care, and engage in exchanges with providers, free from third party interference. It is a right to a good: actual care, regardless of whether one can pay for it. The alleged right to medical care is one instance of a broader category known as welfare rights. Welfare rights in general are rights to goods: for example, a right to food, shelter, education, a job, etc. This is one basic way in which they are quite different from liberty rights, which are rights to freedom of action, but don't guarantee that one will succeed in obtaining any particular good one may be seeking.

Another difference has to do with the obligations imposed on other people. Every right imposes some obligation on others. Liberty rights impose negative obligations: the obligation not to interfere with one's liberty. Such rights are secured by laws that prohibit murder, theft, rape, fraud, and other crimes. But welfare rights impose on others the positive obligation to provide the goods in question.

Health care does not grow on trees or fall from the sky. The assertion of a right to medical care does not guarantee that there is going to be any health care to distribute. The partisans of these rights demand, with air of moral righteousness, that everyone have access to this good. But a demand does not create anything. Health care has to be produced by someone, and paid for by someone. One of the major arguments offered by supporters of a right to health care is that health care is an essential need. What good are our other liberties, they ask, if we cannot get medical treatment for illness? But we must ask, in return: why does need give someone a right? Fifty years ago, people whose kidneys were failing needed dialysis every bit as much as they do today, but there were no dialysis machines. Did they have a right to protection against kidney failure? Was Mother Nature violating their rights by making their kidneys fail without a remedy? It makes no sense to say that need itself confers a right unless someone else has the ability to meet that need. So any "right" to medical care imposes on someone the obligation to provide care to those who cannot provide it for themselves.

If I have such a right, some other person or group has the involuntary, unchosen obligation to provide it. I stress the word "involuntary." A right is an entitlement. If I have a right to medical care, then I am entitled to the time, the effort, the ability, the wealth, of whoever is going to be forced to provide that care. In other words, I own a piece of the taxpayers who subsidize me. I own a piece of the doctors who tend to me. The notion of a right to medical care goes far beyond any notion of charity. A doctor who waives his bill because I am indigent is offering a free gift; he retains his autonomy, and I owe him gratitude. But if I have a right to care, then he is merely giving me my due, and I owe him nothing. If others are forced to serve me in the name of my right to care, then they are being used regardless of their will as a means to my welfare. I am stressing this point because many people do not appreciate that the very concept of welfare rights, including the right to health care, is incompatible with the view of individuals as ends in themselves.

I might add that the difference between charity and rights is very well understood by the advocates of a right to health care. One of their main arguments for using the language of rights is that it removes the stigma associated with charity. A right is something for which you don't owe anyone any gratitude. But notice the contradiction. The reason for proposing such a right in the first place is the claim that certain people cannot provide for themselves, and are thus dependent on other people for their medical care. The advocates of a right to health care then turn around and insist on using the concept of rights to disguise the fact of dependence, to allow the recipients of government subsidies to pretend that they are getting something they earned.

It is also worth noting that the Supreme Court has never recognized a constitutional basis for any welfare right, including the right to medical care. The Court recognizes that the concept of rights embodied in our legal system is the concept of liberty rights. Welfare rights are a product of later movements to expand the role of government beyond the original conception of its role. In our constitutional system, there is no requirement that the federal government provide health care. Health care entitlements, unlike fundamental rights like freedom of speech, have to be invented by legislators.

Effects of a Right to Health Care

Unfortunately, our legislators have been equal to the challenge. They have invented such entitlements in spades. And that leads me to my next point. When government attempts to implement a right to health care, the result will be the abrogation of liberty rights. As with money, bad rights drive out good ones. Let's review the major consequences of implementing a right to medical care. I am going to use illustrations from our current situation, but these consequences follow inevitably from any approach: single payer, managed competition, whatever.

When government attempts to implement a right to health care, the result will be the abrogation of liberty rights.

1) To begin with, of course, the government has to tax some people to pay for medical subsidies offered to those it considers to be in need. So the first consequence of implementing a "right" to medical care is forced transfers of wealth from taxpayers to the clientele of programs like Medicare and Medicaid. And this will inflate the demand for health care services. Offering free or heavily subsidized care is inevitably going to increase overall use of the health care system.

Figures from the early years of the Medicaid program indicate the vast increase in demand that can result. According to a Brookings Institution study, in 1964, before Medicaid went into effect, those above the poverty line saw physicians about 20 percent more frequently than did the poor; by 1975, the poor were visiting physicians 18 percent more often than the nonpoor. Again, before Medicaid, those with low incomes had only half as many surgical procedures as those with middle-class incomes; by 1970, the rate for low-income people was 40% higher than for those with middle class incomes.[1] When Medicare was instituted in 1966, the House Ways and Means Committee estimated that by 1990, allowing for inflation, the program would cost $12 billion; the actual figure was $107 billion.[2] (Government forecasts of the costs of entitlement programs are never accurate. In many cases, like this one, they do not even get the order of magnitude correct.)

2) The cost explosion leads to the second major consequence of implementing a "right" to medical care: restrictions on the freedom of health care providers. During the debate over health care policy in the 1960s, proponents of Medicare and Medicaid assured doctors that they only wanted to pay for indigent care, and had no intention of regulating the profession. Abraham Ribicoff, then Secretary of Health, Education, and Welfare, said: "It should be absolutely no concern to a physician where a patient gets the money."[3]

But of course the surge in demand for medical care led to rapid price increases, along with abuses of the system by clients of the government programs as well as by unscrupulous doctors and hospitals. These problems had to be addressed somehow, and the result was a growing web of controls: Professional Standards Review Organizations, diagnosis-related groups, restrictions on balance billing, utilization reviews. Under the managed care systems that have proliferated in the effort to control costs, physicians have less and less autonomy to act on their own best judgment about what is best for the patient. Dr. Maurice Sislen has written: "A huge, complex, policing system has taken the place of what used to be the doctor's responsibility to his patient. Probably only a practicing physician can fully appreciate the magnitude of the economic waste and moral degradation involved."[4]

3) A third major consequence of implementing a right to health care is the increased burden imposed on consumers of health care—the ones who were originally not in need of government subsidies. As taxpayers, of course, they have to pay for all the programs; that's point 1. But as consumers, they are also affected by all the distortions of the market which these programs create. Everyone pays the higher prices caused by the inflation of demand for medical services, together with the increased costs of regulation and paperwork. As people are priced out of the system, they are forced into managed care systems that limit their choices of doctors.

Health insurance stipulations by states raise the cost of insurance, and discourage employers from hiring certain kinds of workers. For example, "community rating" laws require insurance companies to offer policies for the same price to all people, regardless of age, lifestyle, or physical condition. Since the actual risks depend on these factors, what community rating means is that the young pay higher prices to subsidize the elderly, the well subsidize the sick, and those with healthy lifestyles subsidize those with unhealthy ones. As an indication of the kind of subsidy involved, community rating in New York nearly tripled the cost of insurance for a 30-year-old male.[5]

4) Yet another consequence is a growing demand for equality in health care. If something is a human right, after all, then it should be protected equally for all persons. Our system is based on the idea of equality before the law. Now if we plug into this system the additional idea that we all have a legal right to some good like health care, the natural inference is that we all ought to receive that good on a more or less equal footing. For example, in a 1989 survey for the Harvard Community Health Plan, 90% of the respondents said that everyone should have "a right to the best possible health care—as good as a millionaire." Here's another example, a statement by Horace Deets, the Executive Director of the American Association of Retired Persons: "Ultimately, we must recognize that health care is not a commodity. Those with more resources should not be able to purchase services while those with less do without. Health care is a social good that should be available to every person without regard to his resources."[6] And the Clinton plan is clearly egalitarian. One of the explicit goals of the proposal is to eliminate any "two-tier" system in which some people are able to buy more or better health care than others.

5) The fifth consequence--the last one I'll mention--is the collectivization of health care, and of health itself. Just as a mixed economy treats wealth as a collective asset, which the government is free to dispose of as it sees fit for "the common good," so a collectivized health care system treats the health of its members as a collective asset. Under this regime, physicians no longer work for their patients, with the overriding responsibility to act in their interests. Instead, physicians are agents of "society" who must decide the amount and the kind of care they give an individual patient by reference to social needs, such as the need to control costs in the system as a whole. Indeed, even the individual in such a system is urged to protect his own health not because it is in his self-interest, but because he has a responsibility to society not to impose too many costs on it.

To summarize, then, a political system that tries to implement a right to health care will necessarily involve: forced transfers of wealth to pay for programs, loss of freedom for health care providers, higher prices and more restricted access by all consumers, a trend toward egalitarianism, and the collectivization of health care. These consequences are not accidental. They follow necessarily from the nature of the alleged right.

Clinton Plan

The same is true of the Clinton Administration's plan--true on a much larger scale. This plan will be far more destructive of our liberties than anything we have experienced so far.

The plan calls for a further extension of health care subsidies: to those who are currently uninsured, and to those who have health coverage less extensive than the proposed standard package of benefits. Where are these subsidies going to come from? The Administration has rejected the so-called "single-payer system"—that is, overtly socialized medicine, in which the government pays all the bills—because it knows that the government cannot pay all the bills. The necessary tax increases would be politically impossible. So the Clinton plan calls for a nominally private system in which regulations force some people to subsidize others.

At the heart of the plan are government-protected monopolies.

At the heart of the plan are the health alliances: government-protected monopolies in each area which will collect premiums and negotiate with health care providers to offer acceptable plans. Everyone who lives in a given area will be forced to obtain health insurance through their local monopoly health alliance. Health care providers—private practitioners, HMOs, and others—cannot deal directly with individuals. They can offer their services only through the health alliances, subject to the conditions it imposes.

One such condition is guaranteed access: every plan must be willing to accept any individual who wants it; no one may be excluded for any reason. Another condition is community rating: the price of the plan must be the same for everyone. Now think about what effects this will have on incentives. If I know that when I get sick I will be able to enroll in any plan I want, at a price that does not reflect my condition, then I have no reason to obtain health insurance when I am well. If people are free to choose whether or not to obtain and pay for a policy, the only people enrolling will be the sick, and costs will go through the roof. So the system works only if everyone is forced to participate. That is exactly what the proposal requires, and although the details of the proposal keep changing, this is one point that cannot change.

At the national level, the system will be governed by a National Health Board whose two main functions will be to determine the standard package of minimum benefits, and to set global budgets. The global budgets will force the health alliances to impose what amount to price controls on medical providers. And the standard package of benefits will be set by interest group lobbying, as every group in the health care field will try to get its services included in the package. For example, the current definition of the package includes mental health and substance abuse counseling. You may feel that you do not need insurance for these services, but you are going to pay for them.

In short, the plan will require a massive exercise of coercion against individuals, far beyond anything we have seen so far. Which brings me back to the fundamental issue.

Moral Foundations

In all the ways I have described, any attempt to implement a "right" to health care necessarily sacrifices our genuine rights of liberty. We have to choose between liberty rights and welfare rights. They are logically incompatible. It is because I believe in the rights of liberty that I say there is no such thing as a right to health care. So I want to end by explaining why I think the rights of liberty are paramount, and by trying to anticipate some of the questions and objections you may have.

We have to choose between liberty rights and welfare rights.

The rights of liberty are paramount because individuals are ends in themselves. We are not instruments of society, or possessions of society. And if we are ends in ourselves, we have the right to be ends for ourselves: to hold our own lives and happiness as our highest values, not to be sacrificed for anything else.

I think many people are afraid to assert their rights and interests as individuals, afraid to assert these rights and interests as moral absolutes, because they are afraid of being labelled selfish. So it is vital that we draw certain distinctions. What I am advocating is not selfishness in the conventional sense: the vain, self-centered, grasping pursuit of pleasure, riches, prestige, or power. Genuine happiness results from a life of productive achievement, of stable relationships with friends and family, of peaceful exchange with others. The pursuit of our self-interest in this sense requires that we act in accordance with moral standards of rationality, responsibility, honesty, and fairness. If we understand the self and its interests in terms of these values, then I am happy to acknowledge that I am advocating selfishness.

We have to draw the same distinctions when we think about altruism. For it is, in the end, the moral code of altruism that makes people think that need is primary, that need gives one a right to the ability and effort of others. In the conventional sense, altruism means kindness, generosity, charity, a willingness to help others. These are certainly virtues, so long as they do not involve the sacrifice of other values, and so long as they are a matter of personal choice, not a duty imposed from without. I might note in this regard that physicians have historically been extremely generous with their time.

Confessions of a Colorado Conservative

Sunday, November 9, 2014