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January 26, 2021
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The physicians who form the pantheon of medicine all emphasized an experienced based approach to healthcare. Whether it was Hippocrates characterizing medicine as an art to be practiced. Or reminding that medicine does not consist of treating a disease but healing a person. Medicine has always been defined through experience.
Famed Roman surgeon Galen began his medical career as a surgeon treating dying gladiators, and soon grew renowned for his experimental approach to medicine, eventually serving as the private physician for the Roman Caesars, including Marcus Aurelius.
A career trajectory emulated centuries later by Maimonides, a Sephardic Jew who became the personal physician for the legendary Muslim Crusader, Saladin. Maimonides also took an experimental approach to medicine, but added the importance of civic responsibility as well.
A combination that would inspire Canadian physician Sr. William Osler’s humanistic approach to medicine at the turn of the twentieth century. Dr. Osler, who is best known for managing outpatient facilities at John Hopkins Medical Center, and turning the institution into a research juggernaut, also designed a clinical curriculum that became the model for modern medical education in the United States. He emphasized the clinic as much as the textbook, believing direct patient contact to be the bedrock of good medicine. An emphasis built upon his humanistic approach to healthcare.
When we look at medicine through its humanistic origins, we begin to understand how healthcare laws should form, and better understand the balance between healthcare and law.
An understanding elaborated upon by essayist Ralph Waldo Emerson and naturalist Henry David Thoreau through their analysis of nature and law. The humanistic principles the two espoused through essays and lectures provide a conceptual framework for the role of law in healthcare.
Thoreau emphasized overall moral behavior, more than any individual civic action, as a person’s civic duty to society, equating individual duty with virtue, or what we earlier called aspirational belief. Thoreau’s views on civic duty stems from his perspective on natural rights, which he held sacred above all, including above government intervention. Something Thoreau famously encouraged opposition towards if the intervention violated a person’s natural rights. Advocating that individuals whose natural rights were compromised inappropriately should serve as a, “counter-friction to a fundamental immorality”.
He believed that laws should be in balance with natural rights, and the validity of laws should be measured based upon the law’s morality. A rubric he would use to determine whether to follow a law or not. Thoreau actively encouraged civil disobedience against laws that unnaturally restrict behavior and infringed upon an individual’s healthcare natural rights, valuing such disobedience as a form of virtue.
Civil disobedience transgressing upon natural rights is easy to define for obviously unethical laws, such as slavery. But the concept of natural rights becomes more convoluted for more complex healthcare laws.
Natural rights are universal and unalienable, and codified in the Declaration of Independence: life, liberty and the pursuit of Happiness. But many have debated how healthcare fits into the definition of natural rights. According to Swiss moralist Henri-Frédéric Amiel, “in health there is freedom – health is the first of all liberties.” Implying that healthcare is a natural right on par with the other basic rights we enjoy. A sentiment most would generally agree upon.
What most do not agree upon, however, is what type of natural right. Legal philosophers tend to describe rights in many ways, but the most common way people introduce the theory of rights is by classifying them as either negative or positive.
A negative right is a right not to be subjected to an action of another person or group; negative rights permit or oblige inaction. A positive right is a right to be subjected to an action or another person or group; positive rights permit or oblige action.
In a way negative rights and positive rights are incompatible. Negative rights limit or abstain actions, while positive rights obligate one person’s actions to another.
American culture values negative rights. Our innate desire for liberty has an undeniable streak of rebellion built into it. We truly value our freedom. But we cannot uphold the Constitutional principles of equity and fairness in healthcare and create healthcare laws based upon negative rights. This is how we get healthcare laws that are restrictive in nature.
Healthcare needs laws based upon positive rights. Laws that are structured to balance the many complex relationships inherent to healthcare behavior, obligating individuals to work together to improve their health.
But attempting to develop healthcare laws based upon positive rights in a culture that values negative rights creates a Maimonidean contradiction that can only be solved by integrating a deeper understanding of healthcare behavior into healthcare law, and by developing laws that better represent the dynamic nature of patient behavior.
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