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Letters to the Editor  |   February 2013
Health Care as a “Right”
Author Affiliations
  • Todd R. Fredricks, DO
    Department of Family Medicine, Ohio University Heritage College of Osteopathic Medicine, Athens
Article Information
Professional Issues
Letters to the Editor   |   February 2013
Health Care as a “Right”
The Journal of the American Osteopathic Association, February 2013, Vol. 113, 127-129. doi:10.7556/jaoa.2013.113.2.127
The Journal of the American Osteopathic Association, February 2013, Vol. 113, 127-129. doi:10.7556/jaoa.2013.113.2.127
Web of Science® Times Cited: 45
To the Editor: 
Recently, a colleague told me he feels that health care is a “right.” This was not a novel idea: for the past several years, I have heard many learned people repeat the same phrase. That the phrase came from a fellow physician, however, struck me as particularly interesting. I wondered how my colleague could take such a naïve view of rights, given how they are articulated in the founding documents of the United States. The phrase “right to health care,” which is now bordering on a cliché, is not benign, particularly coming from a fellow physician. Because of this prevalence and particularly for the sake of younger physicians entering the profession of medicine, we might well consider what this phrase means for physicians. 
I believe that adherents to this idea are using the Merriam-Webster website's second definition of right, which is as follows1:
 

[S]omething to which one has a just claim: as

 

a: the power or privilege to which one is justly entitled <voting rights> <his right to decide>

 

b (1): the interest that one has in a piece of property—often used in plural <mineral rights>

 
Part “a” might be construed to bolster the idea that “health care is a right”—in other words, that society has agreed that individuals are entitled to health care. In fact it sounds very enlightened and beneficent to say such things, compassionate even. It certainly sounds worthy of repeating by educated people who care for others. 
Unfortunately, part “b” provides a foil to part “a” by inserting the concept of property. We might also substitute “delivering services” for “a piece of property” because a physician never delivers real property as part of the health care transaction. Authors and musicians feel entitled to compensation for their “services” (sometimes referred to as “intellectual property”) and our society even provides legal protection of those entitlements through copyright laws. So too do physicians reasonably deem that they “own” their services and may trade them in lawful transaction. 
This tradition has its roots in the philosopher John Locke, who defined “property” as an individual's “life, liberty, and estate.”2 Locke elaborated by stating that because human beings form societies, they sacrifice some freedoms enjoyed in the state of nature for greater security in the protection of individual property. Furthermore, he said that governments of such societies that fail to protect those properties essentially break the contract with the people of the society and place themselves in a state of war with their own citizens.2 
Whereas readers may not be familiar with Locke, they will undoubtedly be familiar with Thomas Jefferson, who penned the following in the US Declaration of Independence3:
 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

 
This passage is distinctly Lockean in its verbiage, tone, and intent. Locke was quite clear in his treatise that mankind forms governments at the expense of some forms of pure liberties, for the sake of securing others. Jefferson reiterated this contract in the founding document of the United States of America. 
So herein lies the rub: we find ourselves in potential conflict with our national philosophy by suggesting that people have a “right” to health care but then not examining how that right is to be secured. Notice the critical distinction between having a right to health care and having a right to care for oneself. The former implies an external provision separate from the individual while the latter imposes a responsibility on the individual—the responsibility to care for him- or herself. 
In Open Salon, a user-generated blog from Salon.com, a website not normally associated with Constitutional conservatism, Kent Pitman4 wrote an interesting post called “What Is a Right?” In it, Pitman suggests that true rights are “cost free.” That is, freedom of speech costs nothing to guarantee the individual. Pitman goes on to suggest that we ought to replace the word “right” with “goal” in situations where we would say things like “health care is a right.” We might say that having universal health care is a “goal” akin to the goal of having adequate food. Such ideas appear to be morally compelling, a good thing to pursue, but may in fact be modulated by available resources. Pitman suggests that this is a better use of words because it allows for the pursuit of noble ends in a world of limited resources, whereas the consideration of such concepts as “rights” becomes highly problematic in times of scarcity. 
Unfortunately, while an interesting examination, Pitman's concept of measuring rights against costs fails to directly address the second necessary component of the health care economy: the physician. 
If physicians were merely a fiscal commodity, traded in markets, then we might be able to measure Pitman's test in a more refined manner. But physicians are not commodities, much as health maintenance organizations and large managed care executives might want that to be the case. Physicians are individual citizens. As such, they have the same “unalienable rights” as articulated by Locke and incorporated into our national culture by Jefferson. And it is this individuality—the personhood and citizenship of physicians—that ought to be at the crux of the fight against the notion of health care as a “right.” Monetary concerns should play no role in the discussion. In an age of continuous infringement on and erosion of physician autonomy, this sense of individual rights is a critical concept. 
How can we define a “right” in any true sense of the term when that right is dependent on the skills of one person to guarantee to another? The very notion suggests servitude of one citizen toward another and clearly, unless the physician's notion of “life, liberty and the pursuit of happiness” is defined as effective dependence on the portion of society that chooses to demand their “right,” then we have a serious conflict. 
I find it helpful to look at rights in a different manner, one that I call—yes, it is my creation, I admit—the Deserted Island Test. That is to say, rights are considered legitimate if one can exercise those rights as the sole occupant of a deserted island. For instance, the often controversial Second Amendment guarantees that “the right of the people to keep and bear arms shall not be infringed.”5 Does this stand up to the Deserted Island Test? If the sole inhabitant decides to fashion a weapon or find one washed up on the shore, then that individual could bear that weapon without infringement. The right is not contingent on any other citizen's labor or input to exercise. The weapon borne by the sole occupant of the island may not be the precise kind he or she wants. The ultimate form of the weapon is limited by the burden of finding materials, producing the weapon, or having the weapon delivered to the island—all factors that, in a situation where one is not the sole occupant, might compel another citizen to deprive them of their own unalienable rights. All that is certain is that should the individual come to be in legal possession of a weapon that they have the right to retain it and use it without interference. 
Thus, the Deserted Island Test is helpful in examining the notion of health care as a “right.” What happens when physicians decide that they do not want to provide this “right” because they find it an infringement on their own liberty? What happens when a government tries to compel them under threat of legal action to provide care under the notion of this “right”? 
This argument arose last summer when the Catholic Church was compelled by the Patient Protection and Affordable Care Act to provide contraceptive services as part of health insurance coverage for employees. Edward Morrissey6 of The Fiscal Times summarized the risks involved: Catholic leadership may have decided to simply shut down operations to avoid the profound ethical dilemma raised by a “right” that was in direct conflict with Catholic doctrine. The Catholic Church operates about 12.6% of US hospitals. Morrissey described the economic and social impact of shutting that system down over a policy that—while couched in the notion of “rights”—failed to meet that standard under any reasonable test of the same using a US notion of the concept of religious liberty. 
Based on these long-held notions of liberty, the idea of health care as a “right” is not peripheral to the modern US physician's practice; it is central to the core of what has distinguished the practice of medicine in the United States since its inception: physician autonomy. The impact of the loss of physician autonomy cannot be underestimated, whether by nonmedical administrative decisions on the corporate level or by a national policy conceived out of law that fails to respect the fundamental rights of physicians to exercise their own liberty. 
This is not a discussion about the standard of care. The US medical system has a very healthy notion of that concept and, in my perspective, views those who violate that standard with suspicion at best and contempt at worst. A recent article in Wired magazine7 details the use of induced coma for the treatment of rabies. Untreated rabies is nearly a uniformly fatal disease with few known survivors. Rodney Willoughby Jr, MD, however, has become a national celebrity in the realm of rabies treatment because, as one study reported,8 survival rates have spiked using his protocols. Dr Willoughby is an infectious disease specialist at Children's Hospital of Wisconsin. He is not on the periphery of the US medical community or otherwise engaged in quackery. Yet, even with such high stakes for a disease with such dismal outcomes, controversy is present. 
When a health care system does not allow for free thought or the exercise of individual decision making with patients, physicians might opt out on moral, ethical, and even religious grounds. How much will this constricting climate discourage the many high-quality students who might otherwise thrive in the field of medicine? Surely, a portion of the traditional pool of medical students—highly motivated, highly intelligent, and resourceful—will decide that the price of losing personal freedom is just too high, and they will choose to find other work. 
The implication of such restrictive policy to the osteopathic medical profession is even more profound. Had Andrew Taylor Still, MD, DO, lived under such a policy, I am convinced that the profession would not exist. The entire profession of osteopathic medicine exists because one man was determined to exercise his freedom of intellect, liberty, and sound judgment in the face of a rigid, conventional medical establishment that was unwilling to accept his ideas. One cannot easily imagine the development of osteopathic medicine in an environment dominated by central bureaucracy, one that diminishes physician autonomy and wields corporate- or government-directed standards of medical necessity. It just would not happen. 
When health care is determined to be a “right” for individuals, it necessarily deprives some physicians of their own rights to liberty, such as the right not to manage some conditions and even treat some patients. Also, physicians have the right to “dismiss” patients who are unruly, who are difficult, or who do not benefit from the physician's care. These patients might want services that the physician is not willing to provide. These rights strike a balance in the medical system by meeting the needs of the greatest number of patients because it allows choice. 
As the system stands now, employees of the Catholic hospital system are able to obtain contraception—they just have to use secular private insurance to do it. Surely it is far better to be employed and have to use other means to acquire their contraceptives than to be jobless, as these employees would have been had the Catholic Church shut its system down rather than acquiesce to something that the institution finds morally repugnant. 
There may come a time when a substantial portion of US physicians, be they Catholic or some other moral conviction, are forced out of medicine by the specious “right” to health care. To avoid violating their own conscience, these physicians will have to walk away so that they can exercise their right to “life, liberty and the pursuit of happiness.” If this comes to pass, individuals in the United States will not only lose flexibility and breadth in their health care system, but they will also lose an intrinsic aspect of what makes them Americans. This should concern all US physicians deeply. 
References
Right. Merriam-Webster website. http://www.merriam-webster.com/dictionary/right. Accessed September 11, 2012.
Locke J. Of the dissolution of government. In: Two Treatises of Government: of Civil Government Book II. http://etext.lib.virginia.edu/etcbin/toccer-new2?id=LocTre2.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=all. Accessed September 11, 2012.
The United States Declaration of Independence. The National Archives and Records Administration website. http://www.archives.gov/exhibits/charters/declaration_transcript.html. Accessed September 11, 2012
Pitman K. What is a right [blog]? Open Salon website. http://www.open.salon.com/blog/kent_pitman/2008/10/25/what_is_a_right. Accessed September 8, 2012.
The United States Constitution and Bill of Rights. The National Archives and Records Administration website. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript. Accessed September 11, 2012.
Morrissey E. Obama risks $100 billion if Catholic hospitals close. The Fiscal Times. http://www.thefiscaltimes.com/Columns/2012/03/01/Obama-Risks-$100-Billion-ifCatholic-Hospitals-Close. Accessed September 8, 2012.
Murphy M, Wasik B. Undead: the rabies virus remains a medical mystery. Wired. July 23 , 2012. http://www.wired.com/wiredscience/2012/07/ff_rabies/all/. Accessed September 22, 2012.
Willoughby REJr, Tieves KS, Hoffman GMet al. Survival after treatment of rabies with induction of coma. N Engl J Med. 2005;352(24):2508-2514. doi:10.1056/NEJMoa050382. [CrossRef] [PubMed]