Why is health care especially special?

During the long march to reform health care in the United States, liberals often asserted that health care is a right – a universal good that all Americans are entitled to regardless of ability to pay. President Obama has even suggested that the Affordable Care Act implicitly creates such a right, telling a crowd last year that “In the United States, health care is not a privilege for the fortunate few, it is a right.”

This rhetoric was useful for catalyzing political momentum and elevating the liberal position based on moral urgency. Yet it might also be misleading. By invoking health care rights, health reformers are appealing to moral and philosophical rights – not legal ones found in our constitution or statutes. The Constitution has no explicit guarantee regarding health care, nor has the Supreme Court implied one. And though the Affordable Care Act may create a regulatory scheme that in effect provides guaranteed health coverage, nowhere does it claim to provide an affirmative right to health care generally.

Nonetheless, the right to health care rings true to many of us. Yet we don’t hear the same rights-based language invoked for other basic needs that are low-level prerequisites for a decent life. Why is health care special?

Consider Maslow’s famous hierarchy of needs as a useful framework:

Maslow created a hierarchy of human needs ranging from the most basic to sustain life (physiological) to higher level needs to fulfill life (self-actualization). In the American tradition, Maslow’s hierarchy broadly tracks Jefferson’s general claim of rights to life, liberty, and the pursuit of happiness. “Life” and “liberty” are facilitated by protections of physiological and safety needs, while the “pursuit of happiness” reflects the attainment higher level needs.

To the extent that our Constitution enshrines any of these needs as rights, it does so only as negative rights – rights against the government. While we have constitutional rights against government interference in our morality or religion, our security of property, and sexual intimacy, we do not have positive constitutional rights guaranteeing us employment, food, water, or anything else.

So why have liberals asserted a positive right to health care specifically? Why not include other similar unrecognized rights like housing, food, clothing, or employment? Article 25 of the Universal Declaration of Human Rights declares rights to food, clothing, housing and medical care. So too did President Franklin Roosevelt’s Second Bill of Rights.

One likely answer is that liberals do support positive rights to other similar needs. FDR’s New Deal vision remains the unfinished business of American liberals, intending to tick off his proposed social rights one political mobilization at a time. Under this piecemeal approach, health care now serves as a precedent, with food, shelter, and others to follow in the future.

But still, why do health care first? What is it about health care that makes it a good first step to expanding positive societal rights more broadly?

There are two apparent answers to this, but they each stem from the same principle: that health care is the easiest to accomplish. Health care is the lowest hanging fruit.

This may seem daunting given that health care reform took a century to achieve in the United States. But there are economic and political reasons to think that this is the case. In an influential 1994 paper, law professor Einer Elhauge argued that health care was unique among other would-be positive rights because it involved the least economic disruption to a market economy. Any positive right requires redistribution to those who would not be able to afford a good or service absent a societal guarantee. Elhauge argues that redistribution in the context of health care is less troublesome than redistribution against poverty generally because it creates less moral hazard. This is because we have non-economic, bodily incentives to avoid getting sick. “Individuals normally have no incentive to stay in a state of sickness (or get into one),” he writes (at 1487), “because no one wants to be sick, and because receiving medical care is not (for most of us) intrinsically enjoyable.”

Elhauge argues that the right to health care stems from the same moral intuition that supports rights to other basic needs, but that health care rights are the most feasible and pose the least risk of bad market incentives. As he puts it (at 1490-91): “[W]hat we experience as a strong moral sense that health care should be distributed without regard to ability to pay is, at root, the same moral sense we have that other needs should also be met equally and that other undeserved misfortunes should be compensated, but far less diluted by concerns about administrative problems and undermined productive incentives.”

Elhauge’s theory, then, is that health care is the easiest positive right because it does the least damage to capitalism. Some parts of his argument seem at odds with our experience. For one thing, there do seem to be a substantial number of Americans for whom consuming medical care is in fact “intrinsically enjoyable,” in the sense that they get psychic value from excess check-ups, tests, and clearances from doctors. This is part of what drives up our national health care spending. Yet on the whole, Elhauge’s theory of the unique instincts against over-consumption of medical care and against falling sick does effectively distinguish health care from other potential positive rights.

Beyond Elhauge’s economic case for health care exceptionalism, there is also a political explanation for why health care is most achievable. Unlike other would-be positive social rights, we all understand that a day will come where we will need medical care. Optimism bias may infect some of our thinking (hence the paternalist case for requiring Americans to hold health insurance), but for the most part, we know that someday we will get sick. The randomness of sickness cuts across all classes, creating a universal anxiety that animates health care rights for all.

The same cannot be said for other potential rights. Optimism bias is more entrenched in the middle-class assumption that they’ll never fall into poverty. Upward mobility has long been the American assumption. While economic inequality has dampened that spirit, class stagnation is still presumed, as few anticipate downward mobility. Therefore, most Americans place perhaps undue faith in the unlikeliness that they will face disadvantage like homelessness, hunger, or joblessness. Because of this, it becomes harder to marshal invested political will around these issues sufficient to elevate them to broadly recognized rights.

If universality is necessary for positive rights, perhaps that’s why the closest analogue to the right to health care that we see is the concept of a right to education. Education, like health care, is universally experienced by all Americans. While the federal constitution contains no guarantee of a right to a decent education, most state constitutions do. Moreover, we still see the idea that education is a civil right animating education reformers seeking to improve low-income schools.

This political argument for why health care rights are special can be read in two ways. First, we might see it as raw self-interest. The bulk of Americans will only mobilize around a positive right that they expect will effect their lives – that rights are only politically mainstream if they further middle-class interests. A second, more high-minded way of understanding this, however, is that on the issue of health care, Americans’ political determinations are closer to the Rawlsian veil of ignorance than they are on other issues. Because much of sickness is random falling beyond our control, capable of happening to any of us at any time, Americans more closely approximate a singular objective viewpoint – a uniform interest – when thinking about extending health care rights than they do elsewhere.

We know that liberals think that health care is a special good – something too important to be left to an unfettered market, something too essential to human life and dignity to deprive from those who cannot pay. But understanding why it’s special relative to other special goods both politically and economically is essential to the direction of the liberal social vision after health care reform.


One thought on “Why is health care especially special?

  1. Pingback: A right to paid leave? | J.DODGE blog

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