Strengthening Constitutional Self-Government

No Left Turns

The Right to Health Care, Old Style

I have been reading some pamphlets from the Revolutionary era of late, and that got me thinking about Locke’s ideas about the right to revolution. Locke wrote:

For no Man, or Society of Men, having a Power to deliver up their Preservation, or consequently the means of it, to the Absolute Will and arbitrary Dominion of another; whenever any one shall go about to bring them into such a Slavish Condition, they will always have a right to preserve what they have not a Power to part with; and to rid themselves of those who invade this Fundamental, Sacred, and unalterable Law of Self-Preservation, for which they enter’d into Society.

How might Locke’s ideas apply to the health care debate? As we know, the Progressives, and those who are shaped by their philosophy, simply will say that Locke wrote that in the 17th century, so there’s no reason to listen, and will be tempted simply to ignore the broader question. In general, of course, the Progressives suggested that the ideas of 1776 were passe. (Of course, a century late, so too are the ideas of the Progressives).

But if we take Locke seriously, what are its implications? If they cover essental care, Rahm Emanuel’s brother’s comment run contrary to Locke:

Unlike allocation by sex or race, allocation by age is not invidious discrimination; every person lives through different life stages rather than being a single age. Even if 25-year-olds receive priority over 65-year-olds, everyone who is 65 years now was previously 25 years.

Presumably when life saving care is rationed, the principles of 1776, which were, in this respect, the same as Locke’s, would suggest a right to take such care by force if necessary. How far might those principles apply to medicine that serves the cause of living well, but are not essential to simply staying alive?

It’s much easier simply to follow the Progressives and dismiss all that as passe, of course. And, in the mean time, we can be thankful that, under current US law, such rationing is not legal. Let’s hope it stays that way.

Discussions - 14 Comments

I've seen Locke pop up in this context several times; aren't natural rights (correct me if I'm wrong) negative, as in "gov't cannot take my life" rather than "gov't must extend my life"?

Putting aside the polemic about the Progressives and all that, the point is we do consent to government as individuals, and so we should be very reluctant to privilege the young over the old in dispensing treatment. It's a good point, and one that needs to emphasized in a rationing regime. (But there are exceptions: If only one kidney is available, clearly the young person would take priority over an old one etc.)

The question is whether the further nationalization of health care will allow government to prevent people from exercising their right to seek out health care. It does in some countries.

First Solzhenyitsen and now Locke on the health care debate. Maybe we can wrench their keen insights on the use of Ipods from their texts too. Ok, I'll bite. I think Locke would have condemned Obamacare in his writings but secretly invested in the death panels and serve as secretary for the euthanasia squads, similar to the Lords Proprietors of Carolina. He would not lift a finger to help the sick, dismissing their condition as one of either natural inferiority or divine punishment. Finally, he would reject health care for all illegals over the age of 50, treating them as captives in the war on terror.

Richard: we currently allocate health care resources primarily using private bureaucracies that decide according to internal dynamics (requirement of return to shareholders, denying care based on an individual's prior contracts or inability to pay). Is allocating health care resources according to ability to pay a violation of the principle that you appear to derive from Locke? I recall a Denzel Washington movie a few years ago that took up this theme.

I can sue private bureacracies, appealing to government as higher authority to prosecute them and protect me if they allocate those resources inadequately and do me harm. If the government is also the bureacracy in charge of allocation, to whom do I appeal?

Brett's point isn't trivial, but neither is Kate's.

to prosecute them and protect me if they allocate those resources inadequately and do me harm
You will probably lose, Kate. There is no judicially-enforceable right to life-saving medical treatment. If you hit your policy reimbursement limit, or your policy is rescinded according to state law, for example, and you cannot pay out of pocket and are refused care, courts and prosecutors will not help you.

The question is not whether there will be a health care allocation system (which appears to be Richard's claim). We have one already. The question is whether we can change the allocation system so that it does a better job at allocating resources fairly. You're right that the institutional set up will matter a lot.

I will only probably lose in the private system; I will definitely lose with a government health care provider, because there is not a higher authority for me to appeal to. Privately, for me to win there has to be an abrogation of contract, doesn't there? I can choose my contract, at this point, and if I look for the fullest coverage possible, and can pay for it, then what?

Maybe this all could be sold as tort reform? If, eventually, the medical system becomes part of the federal government and doctors are federal employees, will malpractice work in the same way it does now?

I don't know anything about this and should read more. I am only speculating about that with what little I understand of what could be down the road.

However, whenever anyone gets to worrying about allocating resources fairly, I think about trying to divide a pan of brownies fairly between my six children. Each had a different idea of what was fair and I could never satisfy anyone.

Kate: I appreciate the reply. I was trying to be polite. If the insurance company denies you coverage based on the current rules of the game, you will lose.

If, as Richard suggests, we use Locke as our guide, then neither your previous contract nor your lack of ability to pay invalidates your inalienable right to life-saving medical care. The current system denies care based on contract or ability to pay and is hence unjust. This is part of the reason why rights were revolutionary in the first place.

I agree that tort reform is a good concept here, but in order to satisfy the Lockean inalienable right to life-saving medical care, you would need to expand the situations under which people could sue for medical care, not restrict them.

I also agree that it is a bad idea to allow government officials, acting alone, to make decisions on allocating care. Good thing that nobody is proposing that! What is necessary instead is some combination of reliance on private organizations in the first instance if possible, legislation that sets a floor of minimum coverage, congressional oversight, and administrative and judicial review, with different institutional checks and access points.

What is necessary instead is some combination of reliance on private organizations in the first instance if possible, legislation that sets a floor of minimum coverage, congressional oversight, and administrative and judicial review, with different institutional checks and access points.

Why is any of this "neccessary"? What problem gets solved by your elaborate setup?

Brett, my husband sells health insurance to both employers and to individuals. If a company does not cover what people need to have covered, people do not buy that coverage. Maybe you are talking the same thing as is in this WSJ article today. Government intervention and regulation have caused most of the problems we all wish to have addressed. Let's sort out the contract mess without contracting with government for service.

I'll give you Adam Smith who has a principle of government that it should do for us only what we cannot do for ourselves. Are you saying that health care falls into that category? For a minority of people that might be true. Must we all change our relationship to government for the benefit of that few? I think we already decided that health care is a right, now the questions is who must pay for it. Were rights always a matter of expense?

Yesterday, one of my sons flew back into the country after a long absence. My husband had dropped him from our health insurance for a variety of reasons that revolve around the boy's life-style choices. Why does this come up? Last night he was chasing his three year-old niece around the back yard, jumped over a thicket of grass and landed on the object my husband had avoided with mower all summer, taking a couple of inches of skin off his shin, exposing bone. As I took him out the door to the emergency room, my husband shouted out a window, "Tell them he is an emancipated minor!"

We were not demanding treatment, but asking if he actually needed it. The ER took him without insurance, even without a truly life-threatening situation. I gave them all the cash in my wallet in exchange for fourteen stitches, lots of Lidocaine, at least half a box of rubber gloves, and about three hours of the hospital staff's time. That medical treatment and a $4 bottle of antibiotics should have him healed up without complications in about two weeks. We did keep them laughing and it was very jolly, but I don't know who is paying for this, maybe me, maybe the state, maybe who? No one told me, no one asked me, they just did a lovely job. That's seems like an expression of right to health care if you ask me.

I am till trying to figure out what I think about it.

Kate: glad your son is OK. You're lucky to have that hospital nearby. I'm sure that most doctors really want to practice medicine the way you describe.

I'm skeptical of deregulation as WSJ lays it out. Even they say that public subsidies will be necessary for really sick folks. And the idea of buying insurance to insure against premium hikes in your health insurance - "insurance insurance" - is probably not a real winner.

I do think that the health insurance market has some features that require regulation under Smith's model. Coverage requirements are a great example. We tend to be optimistic with respect to our own ability to avoid bad fortune. Since underinsurance is the natural result, and underinsurance is just another way of imposing costs on third parties or the public, we're used to coverage requirements in other areas (like car insurance). Health insurance has a similar structure.

I think the WSJ article is right in that there were unforeseen consequences to some of the regulation imposed and rather than clean that up, the response is to complicate. That is typical of bureaucratic governance.

I surely do get that underinsurance spreads costs. This is not the first time that kid has ended up in a hospital and the costs were covered by someone other than his family or insurance. That time, the bills came to nearly half of our disposable income for the year. I also get that those costs are greater than they probably need to be. Modern hospitals are marvels, not just in terms of medical capabilities, either. There seems to be a new one going up somewhere in NE Ohio all the time. We have two opening soon within ten miles of us. Having spent more time than I like in the Cleveland Clinic and University Hospitals in the area (not me, close relatives) those places are more reminiscent of cathedrals or temples of health -- glories of architecture, great open spaces, grand works of art -- the money in the system is amazing. Who pays for all that? What does it have to do with people being healthy?

As to coverage requirements, if health insurance were purchasable on the same terms as car insurance -- wouldn't that make more sense than forcing employers to make the purchase? Of course, how to enforce that would be a problem. Is that where the tax credit to pay for for health insurance idea comes in? In my son's first hospitalization the bills were covered by a fund built by charitable donations. That hospital had a person whose sole job was to find coverage for the bills of the uninsured. "This happens all the time." she said. "People like giving to help other people." Just maybe not when forced to do so.

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