Health Care and Negative/Positive Rights

Hospital room (Denmark, 2005)
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The health care debate is really about rights theory.  Some will couch their positions in terms of fiscal responsibility and whatnot, but that is a cover for how they feel about rights and a society’s proper orientation to an individual.  The skinny is a negative right (the government should not interfere into) versus a positive right (the government ought to provide for).  The status quo alignment is mixed, the government does provide catastrophic care for the uninsured and government does provide Medicaid and Medicare.  Despite this reality most people think the government is not at all involved in health care and that it is a true market system.  Remember the famous story where Senator Breaux was accosted by an elderly constituent. “Now don’t you let the government get a hold of my Medicare.”  Most people think that is how our system is.  This post will posit that inaccuracy and simplify the debate along those clean lines.

The general conservative argument against positive rights hinges on a Lockeian theory of property: a person earns a right (a negative right to allow freedom of use) to something because effort was put into its acquisition.  The tax money used to finance a health care system is seen as theft of property.  Specifically within the health care debate, a negative right is manifest as allowing someone to choose whatever insurance plan (including no insurance) one wishes.  That person is also free to not seek treatment.  When asked about those incapable of securing coverage there are two responses: personal responsibility (this is the ‘laziness’ argument made famous during the Reagan era) and second, charity would care for these people.  In other words, health care is a privilege.

I want to deal with the charity fill-in argument first.  Even some notably conservative pundits think this is a bad argument because it spreads the leftist malfeasance even better than a government medicine would.

[C]onservatives have tended to distort this robust idea into another theme that is more comfortable but false: Government welfare is largely bad and private sector charity is largely good.  This is simply untrue….[T]he bulk of nonprofit private charities serving them are more liberal and more permissive than their counterparts in government.  Any criticism I have ever written about government welfare applies doubly to nonprofit charity.  (Rector 1998)

A second problem with the charity argument is that it operates only in theory.  I will concede that if social services dropped then donations to private charities would increase, but this would only occur in times of economic stability which then begs the question about why the government services dropped in the first place.  There is no guarantee that the donations would translate into more or better services delivered than the usual charity services.  There is also no guarantee the increased services would fill in the gap left in the government’s wake.  The conservatives are correct that this test has never been made, and is in fact impossible to test.  Despite the lack of empirical testing the faith and vigor of this defense speaks to something else afoot.  We will return to that shortly.

A third problem with the charity argument, particularly in the health care context is that health care is too large a problem for charities to resolve.  Not only are there too many un(der)insured but the issues themselves are too complex and entrenched for new and established private organizations to adequately wade into.  Yesterday Slate ran a piece outlining what happens when do-good-ing non-profits enter into health care.

As sociologist Paul Starr points out in The Social Transformation of American Medicine, HMOs started out as nonprofits inspired by a noble vision of medical care. The idea was to charge patients (or their insurers) annual fees and cover everything—with an emphasis on prevention and well-patient care. Do more doctoring when it’s cheap so that there will be less to do when it’s expensive. What quickly happened is that idealistic, nonprofit HMOs were driven into the margins of medical practice by the for-profit variety.

One also has to wonder about the ability of many small charities providing health care to actually deliver quality care in the face of rising prices and ever growing lock outs based upon system complexity.  A single provider would have an ability to make the system come to it which would also effect the care given to those with non-charity systems.  This is the argument Obama makes for a public option’s (note Public Option is not the same as Only Option) ability to bring down prices for everyone regardless of option chosen.  The debate about charity fill-in actually becomes quite complex and I could devote the entire blog to its dissection, but for now that will suffice.

Now to turn to the health care is a privilege argument.  I am willing to accept this argument in some, even many, aspects of contemporary life, such as being able to wear white after Labor Day.  However, the importance of adequate health has been demonstrated ad naseum and it is this importance that should elevate it to a level beyond privilege.  Even if the care were limited to basic preventive care then I might be satisfied.  What is upsetting about the privilege argument is its evolution throughout our culture.  We will begin with words from Malla Pollack a law professor:

Lack of positive rights in the United States is historically tied to slavery.  Under the “state action” doctrine, rights listed in the United States Constitution are merely agreements that the government itself will not block individuals from certain actions, not pledges that the individual will be able to make any real-world use f such rights….Because of the state action doctrine, the State has no duty to take care of its citizens, not even “Poor Joshua” in the twentieth century. (Pollack 2007)

Why might this be the norm?  Why would the government grant a negative right, such as the 13th Amendment, when an ability to live freely requires more?  Becasue, the people making the laws have the abilities to make use of those freedoms: first, they were already free of such burden and secondly, they were rich.  I will not categorize such decisions as conspiracy.  It is, sadly, understandable that an oversight would happen because of a lack of understanding.

There are, however, some times when such deference to negative rights cannot be anything other than callous.  This callousness rests upon a supposed universal truth.  There has been an evolution of thought about that supposed universal truth and these days it is found in the “personal responsibility” narrative.  We can look to a Georgia Supreme Court decision in 1853 as a template:

The act of manumission confers no other right but that of freedom from the dominion of the master, and the limited liberty of locomotion; that it does not and cannot confer citizenship, nor any of the powers, civil or political, incident to citizenship; that the social and civil degradation, resulting from the taint of blood, adheres to the descendants of Ham in this country, like the poisoned tunic of Nessus; that nothing but an Act of the Assembly can purify, by the salt of its grace, the bitter fountain – the “darkling sea.” (Lumpkin 1853)

These days we do not condone such a politics.  We consider ourselves fair because someone is not doomed to poverty because of their skin color.  Is that true?  While the person of color may not be condemned by law there may very well be a disparate impact.  These days we have data to disprove such a caste system, at least based around skin color.  However, health care is precisely the same type of lock-out.  A child raised with inadequate care may very well be condemned to a life needing constant and attentive care in order to function normally.  Abnormal functionality may very well usher this child from job to job and into and throughout the criminal justice system.  We will dismiss this person’s abnormal behavior as poor choices and therefore not see our role in his constant institutionalization.  Such deference to negative rights is a hold-out from the slave owner morality.  We have managed to humanize it and to make it less apparent, but it still remains the slave owner morality.

Health care as a positive right acknowledges the world we live in is a social one.  The negative right proponent would like for us to be able to live as islands, if we so choose.  However, that is a wish and not reality.  No man is an island and our contingency as individuals needs to be recognized in, at least, the most fundamental aspects of our location within a technological society.

When looking at the reports of the rallies and the anti-rallies notice the bodies involved.  Those aligned against health care reform are almost always white men.  This debate need not be defined along identity politics.  However, when a group that does not need to be aligned along identity politics is aligned along identity politics I have to wonder why?  There is somethign else at work besides a discussion about government spending.

Lumpkin, J.  (1853).  Bryan v Walton, 14 Georgia 185 (1853).

Pollack, Malla.  (2007).  The unaffordable cost of not having positive rights, a United States perspective.  Charleston Law Review, 3.  available online at :

Rector, Robert.  (1998).  Charity tax credits – and debits.  Policy Review, 87.  available online at:

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