Is It a Right or Isn't It?

From Ross Kaminsky at The American Spectator:

In an October, 2008 debate against John McCain, Barack Obama said that health care "should be a right for every American."

In rights parlance, his assertion is one of a "positive right" meaning that others may be compelled to provide a person's health care. This is distinguished from essentially every right laid out for Americans in our Constitution: these are "negative rights," meaning that they proscribe others from inhibiting you from exercising your right but do not otherwise require active cooperation of others. Your right to free speech does not require others to help you breathe; it simply requires them to leave you alone (except in a few very specific circumstances where your speech is likely to cause imminent harm to others, thus infringing on their negative right not to be killed, beaten, or robbed).

On the other hand, if health care is a right, that means that an American who for whatever reason does not have access to a doctor must be provided that access, whether that means redistributing taxpayer money to the would-be patient or even the potential of forcing a doctor to provide his services in an area "underserved" by health care professionals.

The problem with Obama's positive right formulation -- as with all positive rights -- is that one never knows where such a right ends, if or when such a right might be curtailed when it conflicts with citizens' other (usually negative) rights.

Those who argue that perhaps our foundational (and negative) American right to the pursuit of happiness is infringed upon by the government's taking money earned presumably "according to our ability" and distributed presumably "according to our need" are called heartless and told that our policy suggestions will lead to children starving in the streets. Conservatives and libertarians have never figured out how to counter such heart-rending arguments -- even if the arguments are utterly belied by real-world outcomes, such as the 1996 welfare reform bill signed by a reluctant Bill Clinton (who now proudly claims that legislation as one of his great achievements).

In the modern welfare state, the asserted positive right seems always to win; in particular, there seems to be no limit to the amount of a "rich" person's money the left is willing to redistribute in order to fund America's own socialism-lite, pleasantly rephrased "the safety net."

Indeed, why should there be a limit if welfare or a retirement income or health care is a right?

But at some point, even the charitable and constitutionally illiterate American populace pushes back on the cost of these so-called rights. With trillion-plus-dollar budget deficits as far as the eye can see, we've reached that point in America and the government is now looking for ways to curtail the cost of the latest created right, the so-called right to health care. And when looking to contain costs, it only makes sense to look where government's costs are highest: in the last year of a person's life.

Studies have shown that the percentage of Medicare spending for people in the last year of their lives has been in a narrow range just under 30% for several decades, with about 5% of Medicare patients dying each year.

Chief of the Centers for Medicare and Medicaid Services, Dr. Donald Berwick, a health care socialist who idolizes the British National Health Service -- that's the group who will only treat macular degeneration in one eye because it's better for a person to go blind in one eye than for the government to spend another £1,500 to save both eyes -- is on record saying that health care must and will be rationed. In that vein, and despite a similar provision being removed from the Obamacare bill during debate in the Senate with cries of "death panels," Berwick has issued a rule allowing reimbursement to doctors for end-of-life planning.

Of course, the only way such planning will save money is if the plan calls for grandma to die a little sooner. (Take that, formerCongressman Alan Grayson.) And suddenly, liberals come face to face with the contradiction, or at least unsustainability, of their assertion of health care as a right.

After all, if it is a right, shouldn't Grandma Smith be entitled to as much of the Jones' and Jacksons' money as necessary to keep her alive for as long as she wants to and can have a pulse in her heart, a breath in her lungs?

The big-picture problem for the left is that in the context of government-run health care Berwick's rule is not only sensible, but it's the only possible outcome. This leaves proponents of a "right" in the uncomfortable position of having to say that it's only a right up to a certain age, a certain degree of sickness, or a certain cost.

Yet, if a "right" ends at an arbitrary point set by bureaucrats and legislators -- a point not based on conflict with other rights but rather with changeable financial or political considerations -- then it can't be a right. Furthermore, if a positive right such as that claimed by supporters of Obamacare can be curtailed because of cost, then every government program that relies on the redistribution of wealth can be curtailed. Either they're all "rights" or none of them is.

Of course, the idea that government, with an incentive to "control costs," would be involved with end-of-life counseling is disturbing enough. But perhaps the biggest problem for Progressivism in the news of Berwick's giant step toward health care rationing is that the country is learning in an unmistakable way that the emperor has no clothes. In our constitutional republic, positive rights are anathema to liberty and to life itself.