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Essays

Life, Liberty and the Pursuit of Healthcare

 

“America’s healthcare system is neither healthy, caring, nor a system”

Walter Cronkite, CBS TV Journalist

 

During the Covid-19 virus pandemic, concerns have been raised over government mandates to wear masks and get vaccinations. Those concerns have affected most of our institutions including the military, schools, businesses, sports, and more. The objections are usually about government mandates that interfere with the people’s right to choose and thereby pose a threat to their freedom.

Legal challenges to stop these mandates are underway. It is ironic that those refusing a vaccine would sacrifice their health and the health of others for a contrived objection of losing their freedom. But as President Kennedy reminded us “Freedom without responsibility is anarchy.”  There is no Constitutional right to infect others with a deadly disease.

Dealing with a pandemic as far sweeping as Covid-19 and its variants are systematic of the broader issue of healthcare in the United States. It may be of interest, then, to look at the history of healthcare in this country to understand how it got to where it is today. But more importantly, this paper will address the issue of healthcare as an unalienable human right.

 

HEALTHCARE AS AN UNALIENABLE RIGHT

In the seventeenth and eighteenth centuries, during a period of philosophic thought originating in France and England called the Enlightenment, the idea of “natural rights” was all the rage. With few exceptions, the philosophers of the day felt that human beings were born with certain immutable rights and that the protection of these rights must be a condition of the establishment of a government; e.g., an integral part of the social contract.

The most influential proponent of this thinking was John Locke, who, ironically, was also a doctor. Consider this from Locke in his 1690 “Second Treatise of Government.”

“The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”

 In writing the Declaration of Independence, Thomas Jefferson borrowed heavily from Locke, coming up with this most famous phrase:

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 . . .

Notice that Jefferson left out the terms ‘heath” and “possessions.” One supposes that those rights are implicit in the “unalienable rights,” along with “Life, Liberty and the pursuit of Happiness.”

But what is often overlooked is the phrase that comes right after that:

. . . That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . .

The Declaration was actually a list of complaints against England’s’ George III used to justify our “separation,” as Jefferson put it, from the British Empire. But, more importantly, the Declaration also set forth the political philosophy of a secular government, which was adopted by the founding fathers and became the raison d’être for our Constitution and Bill of Rights – the organic law of the United States.

The ultimate purpose of this organic law is to enable people to freely exercise certain rights with minimum interference from government. And the protection of these rights is why, to paraphrase Jefferson, governments are instituted among men.

So, what are rights? The scope of a “right” is fairly broad. Consider this definition from a legal dictionary:

Right 1) n. an entitlement to something, whether to concepts like justice and due process, or to ownership of property or some interest in property, real or personal. These rights include various freedoms, protection against interference with enjoyment of life and property, civil rights enjoyed by citizens such as voting and access to the courts, natural rights accepted by civilized societies, human rights to protect people throughout the world from terror, torture, barbaric practices and deprivation of civil rights and profit from their labor, and such American constitutional guarantees as the right to freedoms of speech, press, religion, assembly and petition.

Some legal scholars have argued that there is a property interest in some rights, including natural rights, civil rights and human rights. As to human rights, for example, Murray F. Rothbard writes in his series on the Ethics of Liberty:

“. . . there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person’s right to his own body, his personal liberty is a property right in his own person as well as a “human right.”

So, even though human rights can be considered property, they are not commodities. There is no invisible hand in the marketplace driving economic decisions pertaining to rights. Notwithstanding the U.S. Supreme Court opinions to the contrary, rights cannot be bought or sold.

There are many “rights” to be considered – Human, Legal and Moral

Abraham Lincoln referred to Jefferson’s eloquence in the Declaration four score and seven years later in Gettysburg, PA., saying,

“. . . our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” and that, “government of the people, by the people, for the people, shall not perish from the earth.”

These words, along with their nexus to the Declaration of Independence, were memorialized in the 14th Amendment in 1868, which provides for citizenship rights, due process, and the equal protection of the laws, among other things.

Our government was therefore founded on the principles of assuring and protecting the natural rights and the liberty interests of we the people. Some would say these are not only duties of the government, but moral imperatives as well.

By extension then, our elected officials at all levels have a constitutional obligation, and arguably a moral one as well, to help assure that all Americans are afforded the unalienable rights of life, liberty and the pursuit of happiness, including healthcare. It’s hard to pursue happiness when your sick or injured.

On that point, consider that in 1798, Congress passed, and President John Adams signed into law, “An Act for the Relief of Sick and Disabled Seamen.” The Act authorized a small deduction from the wages of seamen for the sole purpose of funding for their medical care as well as building hospitals for their treatment.

In fact, according to a Washington Post article, Adam Rothman, an associate professor of history at Georgetown University has said:

“It [the  Act for the relief of Sick and Disabled Seamen] is a good example that the post-revolutionary generation clearly thought that the national government had a role in subsidizing healthcare.”

It can be argued, then, that the law providing healthcare to disabled seamen could be recognized as a predicate to healthcare legislation such as the 2010 Patient Protection and Affordable Care Act (a.k.a., Obamacare), even though the latter came in force 212 years later.

To the extent that a life is lost or that liberty and the pursuit of happiness are compromised by any American due to the lack of healthcare, then those elected officials responsible for legislation that would ameliorate such suffering, but refuse to do so, are thereby denying the rights promised to that citizen through the establishment of the republic. Such legislators are, in effect, alienating those rights. And their allegiance to fundamental American values should be called into question.

But some say the right to healthcare is not in the Constitution. But, of course, there is that pesky phrase in the Preamble – “promote the general welfare” – that could arguably mean healthcare. General Welfare typically means the concern of the government for the health, peace, and safety of its citizens. But the Preamble is not law and therefore is not enforceable.

In fact, our government has not seen fit to make healthcare for all a right that is enforceable, much less inalienable. In an article titled “Healthcare as a Human Right” on the American Bar Association website the author, Mary Gerisch, writes:

“There are rights to which we are entitled, simply by virtue of our humanity. Human rights exist independent of our culture, religion, race, nationality, or economic status. Only by the free exercise of those rights can we enjoy a life of dignity. Among all the rights to which we are entitled, healthcare may be the most intersectional and crucial. The very frailty of our human lives demands that we protect this right as a public good. Universal healthcare is crucial to the ability of the most marginalized segments of any population to live lives of dignity. Without our health we—literally—do not live, let alone live with dignity.

 In the United States, we cannot enjoy the right to healthcare. Our country has a system designed to deny, not support, the right to health. The United States does not really have a healthcare system, only a health insurance system. Our government champions human rights around the world, insisting that other countries protect human rights, even imposing sanctions for a failure to do so. Our government is not as robust in protecting rights at home.”

 

AGENCIES PROTECTING HEALTH AND SAFETY

Over time, and due to changing circumstances, governments at all levels have established departments and agencies to keep citizens safe and to provide for healthcare.

Probably the most recognizable agency in current times is Centers for Disease Control and Prevention – the CDC. As the nation’s health protection agency, the CDC helps to protect people from health, safety, and security threats. It is a part of the U.S. Department of Health and Human Services, which has a motto “Improving the health, safety, and well-being of America”

The HHS is a vast operation. It has jurisdiction over numerous agencies including the Administration for Children and Families, the Food and Drug Administration, the National Institutes of Health, the Centers for Medicare and Medicaid Services, the Indian Health Service, and the National Cancer Institute among many others.

State and local governments, including Indian Tribes, also have similar agencies under their purview.

But there is another government function that is often overlooked in connection with healthcare – safety. In fact, keeping its citizens and their property safe is the implicit duty of a democratic form of government. As President Reagan said, “Government’s first duty is to protect the people, not run their lives.”

•  We have police departments and fire departments.

•  We have laws requiring seat belts and speed limits and traffic signals.

•  We have building codes to keep buildings from collapsing on our heads.

•  We have the Occupational Safety and Health Administration setting safety standards for the workplace.

•  We have the Federal Trade Commission with jurisdiction over both consumer protection and competition.

•  We have the Environmental Protection Agency which is charged with protecting human health and the environment.

•  We have the U.S. Federal Food and Drug Administration to oversee food and drug safety.

•  We have the Department of Homeland Security, which is responsible for counter-terrorism, cyber security, aviation security, border security, port and maritime security, administration and enforcement of our immigration laws, protection of our national leaders, protection of critical infrastructure, and more to keep us safe.

•  And, of course, we have a vast military to help keep us safe from foreign actors that intend to do us harm.

There are, it seems, a plethora of agencies and departments with the specific responsibility to keep Americans safe and, by extension, healthy.

 

HEALTHCARE FOR FREE

Under certain circumstances, the government actually does provide “free healthcare.”

For example, under the 1986 “Emergency Medical Treatment and Active Labor Act,” hospitals are required to accept and treat anyone who comes to their emergency rooms regardless of their ability to pay.

Then there is Medicaid. If you qualify, which is difficult to do, you can get “free” health services, courtesy of the taxpayers. (Medicare is not free because of related taxes, However, it is subsidized. Heavily.)

Healthcare is also provided to our active duty military personnel at no cost. For retired members of the military and civil employees of the Defense Department those services are provided by the Veterans Administration and TRICARE. On October 1, 2013, the Department of Defense established the “Defense Health Agency” which coordinates healthcare services through the various agencies for current and former military personnel and their families.

There is even no cost government-provided healthcare for the bad guys in our jails and prisons.

So, the U.S. already has a kind of socialized healthcare system, but in a patchwork of programs at the federal, state and local levels.

Internationally, the U.S. is party to Article 98 of the “Geneva Convention relative to the Treatment of Prisoners of War,” which went into force on Oct. 21, 1950. It reads, in part,

“[Prisoners of war] shall be allowed, on their request, to be present at the daily medical inspections. They shall receive the attention which their state of health requires and, if necessary, shall be removed to the camp infirmary or to a hospital.”

A breach of this Convention is a war crime and possibly a crime against humanity. So, if it’s a crime to refuse healthcare to POW’s, what is it when the healthcare of a U.S. citizen is withheld or denied by the U.S. Government?

 

HEALTHCARE AND THE FREE MARKET

The consideration of healthcare as a matter of policy reform should be bifurcated; one part needs to deal with health “care” and the other with health “costs.” It’s really the “cost” part that is of most concern in this country to all the stakeholders.

The term “healthcare reform” is therefore misleading because the primary focus is actually on medical expenditures, as distinct from medical treatments.

Opponents of healthcare reform argue that healthcare should be run mostly by the private sector due to the efficiencies and competitiveness of a free market and because, well, the government is lousy at running anything. Of course, any benefits the private sector produce as the result of competition accrue mainly to insurance, pharmaceutical, and medical equipment and supply companies.

And, healthcare providers that have one-on-one contact with patients – doctors, nurses, hospitals, clinics, therapists, rehabilitation facilities – provide services that, by their nature, do not lend themselves to market-based pricing. There is little or no competition going on between the providers and, obviously from the record, there are no incentives to provide the best possible service at the lowest possible cost. You rarely see an ad from a doctor that offers a free appendectomy if you have your gall bladder removed.

In the absence of control over costs by the invisible hand of the free market, or by government fiat, the U.S. health industry is having a hay day. Consider these statistics:

•  As reported by the Centers for Medicare and Medicaid, U.S. health care spending grew 9.7 percent in 2020, reaching $4.1 trillion or $12,530 per person.  As a share of the nation’s Gross Domestic Product, health spending accounted for 19.7 percent. By comparison, spending on healthcare by the 38 member Organisation for Economic Cooperation and Development (OECD) grew by 4.4% in 2020, or $4,087 per person and averaged 8.8 percent of their GDP.

The 2021 Employer Health Benefits Survey by KFF (Kaiser Family Foundation) shows increases in employer and employee healthcare insurance premiums over a 10 year period.

•  According the 2019 Bloomberg Healthiest Country Index, the U.S. ranks 35th out of 169 countries for the quality of its healthcare system

•  Worldometer reports that for 2021, the U.S. ranks 46th in the world in average life expectancy out of 178 countries

•  The United Health Foundation’s America’s Health Rankings for 2019 shows that the United States ranks No. 33 out of 36 OECD countries in infant mortality.

•  A survey in the American Journal of Public Health found that 58.5% of Bankruptcy cases from 2013 to 2016 were due primarily to medical costs.

•  A report by Blue Cross Blue Shield dated January 21, 2015, shows the extreme variations in knee and hip surgery in selected cities across the country. (Those variances may still apply as of today.)

•  Drug prices are highly variable too. Prices for the same drug can vary from pharmacy to pharmacy, from city to city and even from place to place within the same city. From an April 5th, 2018 article in Consumer Reports, “Shop Around for Lower Drug Prices.” here is a comparison of price variations between pharmacies:

• A 2019 article on Aljazeera.com, “US ranks #1 in the world for sky-high cost of vital medicines,” shows the significant difference in cost in selected counties vs. the U.S.

•  All developed nations, with the exception of New Zealand and the United States, have historically (since the 1940s for Australasia, North America, and Europe) banned direct advertising of pharmaceuticals to consumers.

These statistics are all symptomatic of a failed healthcare system in the United States both in terms of economics and the quality of service. And while I am loath to have government interfere any more than necessary, it seems to me that some of the excesses found in the system must be reined in. In fact, the current situation screams for strong action by the government. It has the legal and moral obligation to do whatever is needed to assure that the unalienable rights of the people to adequate healthcare are protected.

This is no different, it seems to me, than the government’s obligation to keep the country safe from attacks by other nations or by terrorists. Money is no object when it comes to protecting our freedom. Nor should it be when it comes to life, liberty and the pursuit of health care.

Another excerpt from Mary Gerish’s article “Healthcare as a Human Right” cited above seems pertinent here:

“Any system that promotes only insurance cannot possibly meet human rights standards. For example, there can be no universal access if we have only insurance. We do not need access to the insurance office, but rather to the medical office. There can be no equity in a system that by its very nature profits on human suffering and denial of a fundamental right.”

It’s way past time for the U.S. to join the rest of the developed nations in the world and assure that universal healthcare is made available to all of its citizens. And to do so in a way that preserves the private sector’s interests while also assuring that the public’s interest is the top priority. If we do this, the sky will not fall, and the nation won’t devolve into a socialist state. I promise. After all, a healthy citizenry is a happy citizenry. And happy people tend to vote for those who helped make them so.

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