Buchanan examines potential methods of specifying the content of the human right to health care. There is throughout his work a recognition of the importance of the claim that restricting any right to health care solely to medical care is misguided. It is very plausible that health care needs are best served by an approach including additionally extra-medical effort in public health such as sanitation and vaccination programs.
Buchanan has throughout his papers been very clear that a `right to health’ and a `right to health care’ are very different. The former suffers from manifold difficulties including issues around preventing an explosion of resource use but in addition, that of how one would define the target standard to be reached. If this is set at the highest possible level, then it will be fantastically expensive. If on the other hand it is set below that level, then some people will be able to use private resources to improve their position, which could be seen as unfair. It is notable that in the chapter currently under discussion, Buchanan weakens his opposition to a right to health significantly whereas in his other work, he has been clear that only a right to health care can reasonably be considered.
Buchanan argues that attempts to define the precise scope of a right to health care have been misguided, and in any case unsuccessful. This putative right is necessarily vague and only appropriate political procedures should be used to specify the content.
There are also prior questions as to whether human rights exist at all, and why, and there is of course a major set of difficulties around conflicts of rights both within rights to health care and between that right and other rights. Buchanan notes two features he assesses as being essential to all human rights claims, as below.
This paper will fall into two major sections. Firstly, Buchanan’s arguments will be summarized with some brief expositional commentary. In the final section, more detailed comment and criticism will be provided.
Right To Health Care, Right To Health
A right to health care is too narrow. Health is a complex issue which includes a myriad of other influencing factors such as poverty. Since it is well-known (Malat, 2005) that poverty brings with it a host of adverse health effects, simply giving the same amount of care to everyone would have widely disparate results. A further complication arises because of the bidirectional causality likely involved: some have suggested that health is best fostered by addressing the issue of poverty (Kevany, 1996) while others wish to reduce poverty by promoting health (Weil, 2007).
Consideration of the fairness of those disparate results would involve consideration of the yet more intractable and even potentially taboo political issue of the extent to which the poor can be said to be deserving or undeserving. Attempts to justify restriction of resource use on the poor often founder on `genetic lottery’ type objections: I may deserve my lack of resources because of the unintelligent way I have administered my life choices, but to what extent can I be said to deserve my intelligence level?
On the other hand, a right to health is too demanding — it is an impossible standard to meet even in wealthy countries. For example, as technology develops, babies born at ever more extreme levels of prematurity become more viable (Holmstrom, 1993) at some expense. The viability at various degrees of prematurity could be increased considerably but this would have substantial resource implications.
There are two reasons to attempt to find an acceptable interpretation of a `right to health’. There may exist a practical basis: major human rights treaties assert a right to health. In addition, it is undeniable that health is complex, and includes factors other than medical care.
Further, there are two ways to understand a `right to health’ as including a `right to health care’. We could understand a right to health as shorthand for some specific requirements (including a subset of health care). This accepts the following definition to a limited extent: a `right to health’ is the same as `rights to services rendered by health care professionals to individuals or populations’. If so, this includes preventative or curative treatment.
Alternatively, `basic human interest is so important as to justify asserting a social obligation to satisfy that interest’. This would include rights to health care and rights to a healthy environment as parts of a right to health.
Arguments Against A Human Right To Health
Cranston (Cranston, 1973) argues that civil and political rights are universal but social and economic rights are not. This is for two reasons. Firstly, social and economic rights cannot be implemented easily (i.e. via simple legislation) and providing them would be expensive. Against this, it may be said that the issue of limited resources arises for civil and political rights as well, and requires enforcement (e.g. rights to a fair hearing and prohibition of torture).
But secondly, according to Cranston, social and economic rights are not of `paramount importance’, but are merely goals (such as rights to holiday pay). Cranston argues that the divide between civil/political rights and social/economic ones is analogous to the division between duty and charity. Such giving may be desirable, but there is no absolute moral obligation.
Buchanan’s complaint is that Cranston simply labels social/economic rights as best supported by charity without providing an argument for this. Also, Cranston cannot avoid the fact that government expenditure is required even for civil/political rights.
A further problem noted by Cranston is that there is no readily identifiable duty holder. Cranston assumes there can be no rights that cannot be readily provided by identifiable parties. Buchanan again wonders whether this not also true of civil/political rights. And in any case, rights respecting institutions could and in Buchanan’s view should be developed to uphold them.
Justifying A Human Right To Health Care
Buchanan describes three attempts to perform this task in the literature and dismisses them all.
Basic Needs Argument
This section focuses on health care as a basic need. Human rights are `generated by a basic set of needs shared by all people’. Basic needs are defined as those essential for survival. However, this is both too narrow and too broad. We need quality and quantity of health as well, and it is impossible to provide all care needed for everyone to survive.
An alternative definition of basic needs as being those required for minimum security is examined; Buchanan credits David Ozar with this approach. The argument relies on the fact that without the freedom to attend to needs other than survival, a person cannot live a life that fulfills human capacities.
However, this is not well defined enough to specify content for a number of reasons. New technology is constantly becoming available; threats to health vary geographically; and the approach does not tell us whether people have a right to life-maintaining care (e.g dialysis).
To assure survival over time may require much health care, but surely no rights exist for everyone to receive transplants as needed. Liver transplants are frequently refused to persons who would doubtless benefit from them, because others would benefit more and there is a scarcity of organs available for transplant. It seems that under all foreseeable circumstances, such a right would always be impracticable. Buchanan concludes therefore that the right to health care is not survival-related.
Human Dignity Argument
In the section entitled `Health Care and Human Dignity’, Buchanan notes that the view implied in public documents such as the UDHR (General Assembly, 1948) is that `human rights are those moral entitlements that respect human dignity’.
But this still does not solve the problem of needing to come up with a plausible list of basic human needs. And what is `human dignity’? If it is something like `suitable conditions for humans’, then it equates human dignity to possession of human rights. This obvious circularity means this approach is not valuable in defining rights.
Health Care as a Basic Right
Buchanan cites an argument due to Shue that basic rights underpin other rights. One cannot enjoy freedom of assembly without also enjoying the right to physical security. Many countries around the world enshrine the right to free assembly in theory, but employ state or semi-state personnel to inflict violence on persons exercising that right.
Shue has a tripartite definition of relevant rights in the areas of security, liberty and subsistence. The latter includes health care and public health measures. The problem is that the approach allows an uncontrolled expansion of basic rights such that effectively all rights are basic. For example, the right to effective political participation implies education, a free press, free speech and other rights and so the term basic comes to apply to all human rights
And moreover, even if health care can be shown to be basic in Shue’s sense, this does not give us a specification of the content.
Justifying The Human Right To Health Care
Finally, Buchanan essays his own attempt at producing a justification because none of basic needs, human dignity or basic rights arguments have successfully specified the content of a right to health care. Buchanan attempts instead to argue that human rights are moral claims based on basic human interests. Equal consideration for all persons is `fundamental to morality’. Everyone has an interest in being healthy.
The Content Of The Right To Health Care In International Law
The attempt of Toebes (Toebes, 1999) to specify content begins with the phrase `irrespective of available resources’. Buchanan describes this as `inexcusable’ on the grounds that it does not supply a rationale for the specification of content and in addition leads to obvious resource issues.
Toebes then supplies a lengthy list of desirable outcomes in the areas of family planning, immunization, drug availability, water, sanitation and environmental quality. There is no question that these are all beneficial; but making them rights does not seem helpful when they simply cannot be provided in many parts of the world.
The international law approach also fails to be country and situation specific: malaria is an issue in sub-Saharan Africa but not Arizona. And Buchanan observes that international law fails to allow for cultural differences. He also cites religious objections to population control, in the form of a boycott by Islamic countries of an international agreement to that end. The claim was that family planning interferes with matters more properly controlled by a deity.
Buchanan’s final fall-back position is that appropriate democratic procedures should be used to specify the content of health care rights.
Buchanan closes the chapter with an acknowledgment of limitations in the analysis and the call to apply democratic machinery to the problem. If we define global rights in the context of resources available to poor countries, those rights will be minimal. If we do not do that, the rights will be unaffordable.
This may in fact mean that unequal resource distribution globally is the root problem. Buchanan concludes that the international context is the right one in which to examine the right to health care.
Basic Needs Argument
Do we accept Buchanan’s reasoning for rejecting health care as a basic need in the survival version as sufficient? We do after all provide major surgery and other treatments to prolong life on the NHS. Many people would intuitively respond to this type of safety net argument. Even in the US before the recent reforms, the uninsured are treated in emergencies at the expense of others. Apparently each insured person pays $1,000 extra to cover the uninsured (White House, 2009).
Buchanan might also observe that examining questions of survival scarcely seems relevant in wealthy countries where people do not as a rule face starvation.
Could Buchanan derive a `right to health care’ from a `right to life’ and abandon a `right to health’? A `right to life’ appears in the UDHR along with `liberty and security of person’ so one might think that the framers intended it more as a prohibition on states employing (arbitrary) execution. If that is the case, it would be probably too strained to move it in the direction of health care, especially when that issue is separately treated in article 25.
Taking Rights Seriously
Should the word `rights’ be interpreted in a very restricted way such that if people have them, strenuous efforts should be made to permit their exercise including allowing for such ends impingement on others’ freedoms? The more rights there are, then the more frequent conflicts of rights will be, and thus the more rights will be infringed, since any conflict resolution will not allow full expression of all rights in conflict. This weakens the view that rights as a term should be reserved for strict entitlements — the provision of these should be of the highest importance. Systems in which conflicts of rights proliferate promiscuously weaken the very term `rights’ beyond meaning.
Expense Distinction Between Civil/Political and Social/Economic Rights
Cranston argues that there is a distinction between civil/political rights and social/economic rights based on the differential expense of providing the two. Buchanan counters by noting that provision of the former also costs money because of the need to provide impartial courts, prisons and police services among other public goods.
But this is surely too quick. Public expenditure in the UK under the social/economic heading dwarfs spending in the area of justice. The following departmental spending levels relate to the UK in 2010/2011 (Chancellor, 2010a)
|Government Department||Planned Spending|
|Home Office – Police||£9.7bn|
|Department for Work and Pensions||£158.6bn|
It should be noted that there is in addition substantial welfare spending in regional departments amounting to approximately a quarter of the central Department for Work and Pensions figure, such that total welfare spending was £192bn at the time of the June 2010 budget (Chancellor, 2010b} To favor Buchanan, one might assume that the entirety of the Home Office non-police budget is spent on providing civil/political rights for citizens, which is not the case because significant Home Office expenditure relates to such matters as processing claims of asylum seekers and accommodating them. Even then, it is clear that social/economic rights spending is much larger than civil/political rights spending.
Since the quantum of resource required for providing civil and political rights is much less than that required to provide social and economic rights, and even if it transpires that provision of the former is still unaffordable, that scarcely provides an argument to attempt to provide both.
It might be countered here that failure to provide a right in practice does not remove that right. For example, if someone is burgled, we do not therefore conclude that they do not enjoy a right a personal security. We say on the other hand that they have a right which has been violated. The state attempts to ensure that such violations do not occur but cannot eliminate all such violations.
The distinction seems to be the particular level of utopia which must be enjoyed wherein the right can be realized. If such a utopia is in fact extremely remote, then it seems meaningless to insist that a right which can only be made available in nirvana exists in the real world. Some societies, for example Japan, do manage to reduce burglary to very low levels — whether by enforcement or culture is besides the point. Whereas no earthly society could provide a wide array of social/economic rights because the resource commitment involved would detract from the social/economic position of others, and thus impinge on their own social/economic rights. No one has the right to be a burglar.
Can we justify bringing `rights to health’ as opposed to `rights to health care’ back on the agenda? Buchanan has rightly attacked Toebes for her use of the phrase `irrespective of available resources’. Any defenses of such lines fail, if they proceed by noting that some rights may be respected and the statement that they must be can be placed after that phrase. For example, an objective may be specified as follows: `irrespective of available resources, anti-discriminatory policies must be implemented’.
This argument fails because while strictly speaking nothing false has been said, there is a strong implicature that anything occurring after the phrase will in fact involve expenditure. And then resource constraints become operative. If anti-discrimination policies can be implemented successfully without cost, then the phrase is irrelevant. Otherwise, it suffers from the usual problem and permits no expenditure on other priorities.
What does `effective’ mean in Shue’s argument that there is a basic human right to `effective political participation’? Does anyone ever satisfy it, given the microscopic impact of any single voter on any given national question? (It must be noted that this objection is more in the character of challenging Shue and thus supports Buchanan’s position.)
Foundations Of Morality
Can we hold that equal consideration for all persons is `fundamental to morality’ from the perspective of a wealthy country without eliminating morality?
It is likely that many readers will be located in relatively prosperous nations. Even in those nations, equal consideration is not much in evidence. If we consider the wider world, it seems hard to argue that rich countries are acting with equal consideration for persons who are not their citizens. Any argument attempting to justify this would run the risk of claiming basic human rights which exist for all people but only if they are in possession of the right type of passport.
If then there is no equal consideration, and that is foundational to morality, then morality rests on unstable ground.
Buchanan’s Basic Interests Argument
This argument seems to be susceptible to all of the criticisms Buchanan has made of the other three attempts he identifies in the literature; it is thus difficult to allow that he has been any more successful. This failure is perhaps tacitly acknowledged in the fact that Buchanan’s final position is to leave the problem to democratic institutions.
Buchanan’s approach again does not provide a specification; also everyone has other interests we do nothing about.
Is looking to international law to specify rights following the right direction of causation? It might be more appropriate and certainly would be when working from a philosophical viewpoint to have some more well-founded justification of human rights or to allow that there are none if no argument can be provided.
In defense of Toebes, it might be said against Buchanan that she is simply taking a legal approach. If one accepted the UDHR as binding, then article 25 is compendious:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
This would suffice for a lawyer to say that the rights exist, because in legal terms it is indeed sufficient for a right to exist that an appropriate document thus specifying has come into force. But law and reality are distinct, and it is clear from the discussion that in fact the aims of article 25 are some distance from realization.
Deciding whether the UDHR is binding is itself a major question. The initial document itself is not binding; it has no signatories. It was however ratified in the General Assembly by 48 votes with 8 abstentions and no votes against; further, elements of it have been incorporated into national law.
Buchanan may be able to respond that he does not actually run the argument himself that rights exist because they are listed in documents such as the UDHR, as opposed to merely discuss it. Anyone who does take that line runs the risk of arguing A therefore A, no matter how august and venerated a particular document is. At most, this could establish that current practice allows the existence of a particular right — even for such rights if any that are widely observed — and would say nothing as to the correctness or otherwise of the existence of that right.
Buchanan appeals finally to democratic institutions to specify content, but this leaves him open to the question as to why, if democracies can solve the problem, they so far have not. The alternative would be to accept that the status quo, at least in democratic nations and perhaps in reasonably wealthy ones, is optimal. Were that the case, we would be justified in wondering why we have been reading this book and why it was written.
In addition, existing situations do strike a balance between common provision and shared expense burdens, but may not do so optimally. Prior to the Obama health care plan, more than 30m Americans were uninsured, one in three Americans were without coverage at some point in any two year period, and one and a half times more was spent per capita on health care than any other country without there being any health benefits of the extra spending (White House, 2009). It remains to be seen what level of improvement will be provided by the reforms but it seems unlikely that they will solve all imaginable problems and even then, efforts at reform had been stalled in Congress since 1943. Indeed, at the time of writing, significant legal and constitutional obstacles were being created that could bar progress on implementation of the reforms.
Should we take any account of religious objections? This is likely to be rather a sterile debate. The rationalist may argue that any irrational considerations should be ignored. Anyone opposing that viewpoint will likely fall into one of three camps. The first will be those holding religious viewpoints, who are not susceptible to rational argument. Otherwise the claim that family planning would interfere with divine prerogatives would fall foul of the objection that any omnipotent being would not find such measures (or indeed anything at all) a hindrance.
The second camp will be those who do not hold relevant religious views themselves, but would like those of others respected. The final camp will be those who do not hold religious views and are less concerned about respecting those of others, but are merely pragmatic about the prospects of generating international agreement without taking note of non-rational considerations.
It seems likely that argument will not serve to move people from one camp to another, and will not shift people from their religious views, despite the likely health benefits thereof. In the UK, there would be more organs available for transplant were the current `opt-in’ transplant consent system replaced by an `opt-out’; but it is unclear what reasons other than religious ones can be advanced against the more radical proposal that even the opt-out is futile and counterproductive for living people in need of organs.
Should we invade non-democratic states to enforce the rights of their citizens? At what cost? Presumably if the `rights’ are taken very seriously, no cost considerations could be taken into account where an invasion could reduce rights violations. But even under more pragmatic analyses, it would seem that many invasions could be successfully mounted to depose unappealing regimes. This would then be the reserve justification for the invasion of Iraq, once it transpired that no weapons of mass destruction existed in that country. We may suspect that the type of political view that favors a wide definition of human rights and also strenuous efforts at fostering them would balk at such a conclusion.
A Buchanan, Justice & Health Care, Oxford University Press, 2009, Ch. 9
J Malat, H J Oh, M Hamilton, Poverty Experience, Race, and Child Health, Public Health Reports (1974-), Vol. 120, No. 4, Disparities in Children’s Health and Health Care (Jul. – Aug., 2005), pp. 442-447
J Kevany, Extreme Poverty: An Obligation Ignored, BMJ: British Medical Journal Vol. 313, No. 7049 (Jul. 13, 1996), pp. 65-66
A Weil, A Health Plan to Reduce Poverty, The Future of Children Vol. 17, No. 2, The Next Generation of Antipoverty Policies (Fall, 2007), pp. 97-116
G Holmstrom, Retinopathy Of Prematurity: Increasing As Survival […] Increases, BMJ: British Medical Journal, Vol. 307, No. 6906 (Sep. 18, 1993), pp. 694-695
M Cranston, What are human rights?, London: Bodley Head, 1973
General Assembly of the United Nations, The Universal Declaration of Human Rights, 1948
B Toebes, The Right to Health as a Human Right in International Law, PhD thesis, Intersentia/Hart, 1999
Office of the White House Press Secretary, REMARKS BY THE PRESIDENT, September 9, 2009
Presented to Parliament by the Chancellor of the Exchequer by Command of Her Majesty, Spending Review 2010, The Controller of Her Majesty’s Stationery Office, 2010a
The Chancellor of the Exchequer, the Rt Hon George Osborne MP, Budget statement, 22 June 2010b