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April 27, 2021
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When we look at medicine through its humanistic origins, we see the balance between healthcare and law.
An understanding first elaborated upon in America by essayist Ralph Waldo Emerson and naturalist Henry David Thoreau through their writings on nature and law. The humanistic principles the two advocated for provide a conceptual framework for the balance between healthcare and law.
Thoreau believed that laws should be in balance with natural rights, and the validity of laws should be measured based upon a law’s morality. A rubric he would use to determine whether to follow a law.
He 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 against laws that transgress upon natural rights is easy to define for obviously unethical laws, such as slavery. But the concept of natural rights becomes more convoluted for 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 and hold in reverence. 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. A positive right is a right to be subjected to an action or another person or group – a right given to someone who maintains an obligation or a responsibility to someone else or to society at large.
In a way negative rights and positive rights are incompatible. Negative rights limit or abstain against actions, while positive rights obligate a person’s actions to another individual.
America 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, which place undue burdens among select individuals or populations, burdens which should be distributed across society evenly – and constitutionally.
Healthcare laws instead should be based upon positive rights. Laws designed to balance the complex relationships inherent to healthcare behavior, which obligate individuals to work in a coordinated manner to improve overall public health.
But attempting to design healthcare laws based upon positive rights in a culture that values negative rights creates a contradiction – that can be solved by incorporating a deeper understanding of healthcare behavior into healthcare law, by developing laws that better represent the dynamic nature of patient behavior.
“Each man is a sliding scale”, Emerson wrote, referencing that patients can present with both different symptoms and different degrees of awareness for those symptoms, emphasizing that both the changing symptoms and the changing awareness of those symptoms should go into treating patients.
Healthcare was never intended to be distilled down to just the facts. It is an experience, to be viewed in its entirety. With the facts and data viewed relative to the whole experience.
A sentiment Justice Oliver Wendell Holmes, Jr. agreed with when he said, “the life of the law has not been logic; it has been experience.”
Healthcare natural rights should similarly be defined through the experience of healthcare, incorporating the complex array of medical conditions, interactions, and patient behaviors – into the laws themselves.
Laws that do not simply restrict healthcare behavior, but assert healthcare natural rights.
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Trivia
What we can learn from the 1918 Flu Pandemic as the Omicron variant spreads
Historically, most pandemics end within 2 to 3 years as the virus mutates into a less virulent pathogen and the population builds up immunity. This is what happened to the influenza strain behind the 1918 flu pandemic.