Over the few months we have been dedicating our time and energy to TBM and these posts, we do occasionally have internal debates about some of the fundamental issues that Mr. Obama has inadvertently raised in the course of proffering HCR. The most obvious of these is rationing– something we have commented upon many, many times. Another one has recently captured our attention: the concept of health care as some sort of right. A posting on RealClearPolitics started it all. Now, this is a touchy subject and we appreciate the complexity of the modern world as much as anyone. However, the lineage of our Constitution is well known to most with a college level education or a moderate interest in history The post-script on that document is of course still being written with each passing decision of the Supreme Court (which explains the great attention presently given to Judge Sotomayor).

In short— we can summarize that the document created and ratified in September 1787 derived largely from the European continent and two key philosophers: Montesquieu, who emphasized the need to have balanced forces pushing against each other to prevent tyranny and John Locke where several passages from his writings are reproduced verbatim in the Declaration of Independence. Our experience with the British also played heavily in the creation of The Document, with the due process clause partly based on common law stretching back to Magna Carta of 1215.

For the purposes of this posting, one of the biggest debates of the Constitutional Convention concerned the Bill Of Rights. That these are known to us as the first 10 amendments to the Constitution tells us much about how the original debate ended. The framers believed that to enumerate any right would set a precedent whereby if the right was not enumerated in the document, it would not exist. For this reason they resisted listing any rights whatsoever. In 1791, the Bill Of Rights was added and this addition reflected the politics of the day. We have been adding rights to the constitution many times since– but the seminal “right” creation came in 1965 with the ruling on Griswold v. Connecticut wherein the Supreme Court determined that the Constitution protected a right to privacy. Although the Bill of Rights does not explicitly mention “privacy,” the Court ruled that the right was to be found in the “penumbras” and “emanations” of other constitutional protections. This single ruling is at the heart of the schism that now exists over abortion, Federalism and even healthcare.

The Court created a new right in 1965, and based this creation on emanations from the Constitution. These emanations gave rise to Roe v. Wade in 1973 and, in the 1990’s, to the notion that healthcare is a right. In a truly remarkable piece of scholarship from 1993-94, we learn that President Clinton was the first modern figure to bring the concept of Healthcare As A Right to the National stage. The article states:

“President Clinton campaigned with the slogan, “Health care should be a right, not a privilege.” Opinion polls regularly show that the belief in such a right is widespread, even within the medical profession. The AMA’s “Patient’s Bill of Rights” includes the statement that patients have a “right to essential health care.”

And, what follows from this line of reasoning is clear:

“If health care is a right, then government is responsible for seeing that everyone has access to it, just as the right to property means that government must protect us against theft. For the past thirty years, the idea that people have a right to health care has led to greater and greater government control over the medical profession and the health care industry. The needs of the indigent, the needs of the uninsured, the needs of the elderly, among other groups, have been put forward as claims on public resources. Government has responded by subsidizing these groups, and regulating physicians, insurers, and pharmaceutical companies on their behalf. Now the Clinton Administration proposes to make this right universal, to create a universal entitlement, and to vastly expand government control.”

This singular piece of scholarship is remarkable enough that quoting from it in bits and pieces demeans it. But, one paragraph merits even a bit of publicity:

“Health care does not grow on trees or fall from the sky. The assertion of a right to medical care does not guarantee that there is going to be any health care to distribute. The partisans of these rights demand, with air of moral righteousness, that everyone have access to this good. But a demand does not create anything. Health care has to be produced by someone, and paid for by someone. One of the major arguments offered by supporters of a right to health care is that health care is an essential need. What good are our other liberties, they ask, if we cannot get medical treatment for illness? But we must ask, in return: why does need give someone a right? Fifty years ago, people whose kidneys were failing needed dialysis every bit as much as they do today, but there were no dialysis machines. Did they have a right to protection against kidney failure? Was Mother Nature violating their rights by making their kidneys fail without a remedy? It makes no sense to say that need itself confers a right unless someone else has the ability to meet that need. So any “right” to medical care imposes on someone the obligation to provide care to those who cannot provide it for themselves.”

Taking aim squarely at President Clintons plan, the author writes:

“At the national level, the system will be governed by a National Health Board whose two main functions will be to determine the standard package of minimum benefits, and to set global budgets. The global budgets will force the health alliances to impose what amount to price controls on medical providers. And the standard package of benefits will be set by interest group lobbying, as every group in the health care field will try to get its services included in the package. For example, the current definition of the package includes mental health and substance abuse counseling. You may feel that you do not need insurance for these services, but you are going to pay for them.

In short, the plan will require a massive exercise of coercion against individuals, far beyond anything we have seen so far. Which brings me back to the fundamental issue. “

That we are engaged in the exact same debate as 15 years ago should be sobering to all of us. As a society, we have come no closer to wrestling with this issue and settling on anything resembling consensus. Is healthcare a right? Perhaps we should be talking about this more.