The existence of a right to health care is often taken for granted without a moment’s reflection on its absurd implications. Does your right to health care exist regardless of how you comport yourself? Do you smoke or drink heavily? How much treatment for diseased lungs and livers will be owed to you? Do you take physical risks? By how much are the world’s ERs and orthopedists in thrall to you? There are always people who can benefit from additional care, so providers must then come face-to-face with truly daunting obligations. Are caregivers to be in bondage? Can they take vacations? After all, delivery of care is their duty to all health-care rights-holders. If you are entitled to health care as a basic right, does that relieve you of any responsibility to purchase insurance coverage? Or does that become everyone else’s responsibility? 

These are just a few of the decisions that have to made to determine the boundaries of a “right” to health care. The answers are dependent on politics and, surrounding many details, bureaucratic rule-making. It is an odd thing for a so-called “right” to be subject to the shifting vagaries of politics and the day-to-day decisions of bureaucrats.

There is an important distinction between two different kinds of rights, however. The least controversial rights place obligations on others only insofar as they must tolerate free exercise by the rights-holder. So it is with free speech, religion, and private property, which only compel others to inaction. For that reason, they are sometimes called “negative rights”, a rather unfortunate appellation. Trevor Burrus draws contrasts between negative rights and those which obligate others to take action. The latter are called “positive rights”, which is equally unfortunate and dubious.

The problem is that no one has an indisputable right obligating others to take action on their behalf. One may feel it is their moral imperative to aid others under some circumstances, as under a physician’s oath, but ultimately, in a free society, such acts are voluntary. Neither should these actions be matters of state compulsion. Instead, they are ordinarily self-imposed as professional duty or Samaritanship. The point is that a positive right to health care cannot exist without the consent of someone else: those second parties (providers) or third parties (payers) upon whom the exercise of the right depends.

Don Boudreaux states things simply: asserting a right to healthcare is really a demand that health care be “free” at the point of service, despite its resource costs. Inspired by this misguided notion, vote-seeking politicians have given us a history of efforts to subsidize health care via Medicaid, Medicare and tax deductibility. But as Boudreaux explains, this has driven up health care costs, often undermining the ability to access the very care meant to have been available in greater abundance. Boudreaux’s key insight is the application of real-world scarcity to the problem of inventing “rights” that require the positive action and resources of others.

A hot topic in the current health care debate involves coverage of individuals with pre-existing conditions and the subsidies necessary to ensure that they get care. Do they have a right to that care? Perhaps a “positive right”, but maybe not: as a society, we might choose to ensure their care, but if that is a political decision lacking the full consent of all potential payers, the delivery of care is really just an act of majoritarian compassion, not an absolute right.

The most fundamental of human rights, so-called negative rights, require only tolerance from others. In a free society, so-called positive rights do not exist without the voluntary consent of those who must shoulder the burdens necessary to allow the exercise of those rights. The burdens might involve tasks or payments on the rights-holders behalf. Human rights should never be conceived as creating enforceable, involuntary debts for second or third parties to be repaid with action. Without full consent, government creates such obligations only by force and the taking of resources. Health care should be viewed as a real right only to the extent that caregivers and payers agree to provide the needed resources voluntarily. That doesn’t mean we lack an ethical obligation to care for the sick, only that sick individuals may not demand free, unrestricted care.