Donald Trump does one thing very well. He sucks all the oxygen out of the news space, making it close to impossible for anybody to find out about anything that’s not him. But in 2003 before Trump came on the scene blotting out everything else, then U. S. Representative John Conyers, Jr. (D-Mich.) introduced a sweeping health care bill meant to revolutionize the country’s health care delivery system. He reintroduced the bill in every Congress until his retirement and it’s still pending in the House of Representatives as H. R. 676, “The Expanded and Improved Medicare For All Act.” As the title suggests, if enacted, the bill would establish a universal, single-payer health care system financed by a range of new taxes.
The moral principle that proponents of universal health care appeal to is that it’s a right, not a privilege. Right on cue, Representative Keith Ellison (D-Minn.) invoked the principle when he announced that he’s taking over as the bill’s point man. “Health care,” he said, “is a human right, and Medicare for All is an idea whose time has come.”
It’s an indication of how freighted the principle is that Atul Gawande, a highly regarded commentator on health care, devoted a New Yorker Magazine article last fall to the question whether the principle is true, that is, whether health care is a right. It’s also a measure of how hard it is to say anything useful about this that Gawande punted, settling for just reporting some ordinary health care consumers’ befuddled, incoherent musings on the subject.
It’s a reasonable guess that vindicating the principle is so urgent to many people because they think that, if true, it would settle all the outstanding health care policy issues at a stroke. Advocates seem to think that there’s a short inferential path from the principle to the policy.
But there isn’t. So instead of doing what Gawande couldn’t or wouldn’t, I’m just going to stipulate, as the lawyers say, that health care is a right and try to figure out where that leaves us at the policy level. If I’ve got this right, it turns out that accepting health care as a right leaves us about where we are now.
It’s not hard to see why proponents of Medicare for all think that appealing to the health-care-is-a-right principle gives them a lot of leverage in the policy debates. After all, rights are very strong moral claims. If I have a right to something, then you have corresponding duties toward me. That’s why we’re all so eager to claim rights to one thing and another. If they weren’t moral chits that we could call in against other people, nobody would care about them.
But there are rights and there are rights. A lot of conservatives seize on the Declaration of Independence rights to “life, liberty and the pursuit of happiness” as paradigm cases of rights. That’s because the duties corresponding to those rights are just duties of forbearance, of mere non-interference. So all it takes for me to discharge my duty to respect your rights to life, liberty and the pursuit of happiness is basically to leave you alone. Duties of forbearance aren’t very costly or burdensome.
A right to health care, though, isn’t like that. If I have a right to health care, then you have toward me a performance duty. That is, you have a duty, not just to stay out of my hair, but to actually do something that gets me the health care I have a right to. And it’s because a right to health care imposes performance duties on others that conservatives don’t want to hear about any such right. Or at least they think they don’t.
If a right to health care imposes a corresponding performance duty, who exactly has that right? Intuitively, it seems that everybody would. But is that true?
According to Business Insider, Amazon’s Jeff Bezos is worth upwards of $100 billion. If he needs a heart transplant, for which the going rate, depending on where you are, is $1 million give or take, about thirty minutes worth of his last year’s earnings would cover the bill. I don’t know about you, but I certainly don’t think I have a duty to kick in for Jeff’s replacement ticker. Able to buy and sell me countless times over, he can self-insure for any conceivable health care he might need and still have eye-popping wealth left to indulge his every whim.
My intuitions about Bezos-type cases tell me that we don’t have an unqualified right to health care. What we have is a right to health care that we need and can’t afford. In other words, we have a means tested right to health care.
But guess what? That qualified right to health care is already deeply embedded in government policy, the most obvious example being Medicaid, established in 1965. We’re at one another’s throats about where to fix the qualifying income level, what services should be covered, how much providers should be paid and a whole bunch of other vexing issues. But there’s a broad consensus favoring a means tested right to health care.
If political morality gets us no further than this qualified right to health care, how do we get to a single-payer system of universal coverage? If there’s anything to my story so far, just saying “Health care is a right, not a privilege!” over and over again won’t do it. To see why, let me disturb Jeff Bezos again.
I said that I don’t think I have a performance duty to help Jeff get a heart transplant, or even a bottle of aspirin. But if I have a means tested right to a heart transplant, he has a duty to help me get one if I need it but can’t put my hands on $1 million. And as we found out with the Affordable Care Act, people really, really don’t like to be taxed to fund a public benefit that they don’t themselves qualify for or want. One thing that made the Affordable Care Act so politically toxic is that people who didn’t qualify for its premium subsidies were furious over being taxed to fund subsidies for people who did.
On a reasonable understanding of the principle that health care is a right, then, it doesn’t capture everybody. Not everybody has a right to health care. It’s only people who need it and can’t afford it who have a right to it. Those are the only people toward whom society has a corresponding performance duty.
That puts us squarely atop one of the most active fault lines in American political life, where there’s unremitting conflict about who really “needs” health care and who really “can’t afford” it, those on one side pushing to expand the morally deserving population and those on the other pushing back in the opposite direction. For example, as the New York Times reported recently, several states have applied for waivers so they can require able bodied Medicaid beneficiaries to work. Predictably, work requirements provoked howls of outrage from health care rights advocates, who think the requirements are contrary to the program’s original purpose. But so entrenched is the principle of health care as a means tested right that even officials in one state which has a work requirement defend it, with a straight face, as promoting the health of Medicaid beneficiaries.
If there’s a case for Medicare for everybody, then it’s based less on political morality than on the tactical benefit of means testing nobody, to spare us the prospect of endless debilitating warfare over who does and doesn’t deserve it. The reason that our current Medicare system for those over age sixty-five is so uncontroversial isn’t because we’ve checked out that population and determined that they all “deserve” health care largely on the government’s dime. It’s because we’ve decided not to even ask that question about them. So if we ever get to Medicare for all, that’s how we’re going to get there.