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About UsMedicine & Law Cannot Get Along
May 22, 2022
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We see a growing discrepancy between what most Americans understand healthcare to be, and what forms the philosophical basis of the Constitution. It leads to riots on the streets and vitriolic policy debates, particularly for polarizing healthcare issues.
The problem is neither side is entirely wrong. Regardless of whether the issue may be vaping, abortions, or prescription opioids, most are complex enough to justify nearly any stance. This is because healthcare and the Constitution as we currently interpret it are fundamentally incompatible.
“In Europe, the charters of liberty have been granted by power; America has set the example of charters of power granted by liberty”, said Founding Father and fourth President, James Madison. He was talking about the nature of rights in the then nascent United States.
Rather than a government giving rights to its people, the United States would assume that all Americans had pre-existing, unalienable rights “endowed by their Creator” and the American government would merely restrict certain rights in the name of public good.
Political scientists call these negative rights. In contrast, positive rights provide something or assume some obligation from the government to its people. Needless to say, healthcare as we understand it is derived from positive rights.
The problem is the Constitution is written to align philosophically with negative rights. The right to bear arms is considered an unalienable right, so the Constitution cannot restrict that right from people. Abortion was outlawed by English Common Law, so the writers of the Constitution, referencing Common Law, never saw abortion as an unalienable right.
This is why you hear so many anti-abortion policy wonks claim the Constitution never guaranteed the right to an abortion or assumes any provisions in protecting that right. They understand the Constitution is based on negative rights, restricting rights already assumed innate to all peoples.
To then turn around and claim that abortion should be protected violates the ethos of the Constitution and of the Common Law precedent that serves as the conceptual basis for it.
So who is right and who is wrong? Are those who steadfastly heed to the negative rights principle of the Constitution right? Or is it those who intimately understand the modern socioeconomic constraints driving women toward abortions?
Attributing binary labels of right or wrong to any stance on a healthcare issue has proven to be counterintuitive at best. What would make more sense is analyzing how we can integrate positive rights beliefs underlying healthcare with a legal framework based on negative rights. In other words, how can we integrate healthcare into the framework of the Constitution?
There are two methods. The first is to concretely define the unalienable rights that constitute healthcare. European philosopher Henri Frederic Amiel wrote: “In health there is freedom. Health is the first of all liberties.” So conceivably, we would categorize healthcare as a liberty to be further elaborated, or enumerated, to use the most Constitution-friendly term.
The problem with this approach is that we are already doing it. We ceaselessly chase our own tails arguing preconceived stances that we already believe. Some will say the right to pain relief is a fundamental liberty. Others will say the right to life, in all instances of life, is true liberty. We moralize our gut feelings through grandiose prose until our voices grow horse. And we continue to argue and bicker.
The second, and more reasonable, approach is to construct laws in an affirmative manner, which means laws balance rights afforded with commensurate responsibilities or obligations. We already have something like this, only we do not call it a law, we call it insurance. Health insurance policies balance medical risks with monthly premiums or deductible payouts.
Most insurance policies are already federally administered. The leap to extend this affirmative balance found in insurances to all aspects of healthcare would not be difficult. In fact, it would be quite logical.
Instead of issuing blanket restrictions on abortions, the right to the medical procedure would be determined by socioeconomic constraints, individual harms, and broader social benefits – and administer rights with responsibilities accordingly.
The Constitution has made provisions for such laws in the Fourteenth Amendment. Included within it are two core doctrines that serve as the basis for this type of law – Fundamental Fairness and Equal Protection of the Law.
These are abstract concepts, which have been formalized to enact laws like those that ushered in the Civil Rights Movement and fair immigration practices. Perhaps it is time we apply those concepts to healthcare.
So we can once and for all codify what we mean by rights in healthcare – not as a restriction, but as a balance.
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