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Does Obamacare guarantee a right to health care?

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"In the United States, health care is not a privilege for the fortunate few, it is a right."

President Barack Obama

For decades people have been debating whether or not people have a "right" to health care. The notion of rights that is typically invoked is distinct from the question of whether people have a right to enter the market for health care services and engage in exchange activity in order to obtain health care. "Rights" as the concept is invoked by the President and those who believe in a specific "right to health care" implies a guarantee that the right holder can obtain health care services either without charge or at prices that are "affordable," hence the official title of Obamacare, the Affordable Care Act. (See this previous newsletter for a more detailed discussion of different conceptions of rights.)

This notion of rights therefore implies an obligation on the part of others. There are two possibilities. The first, typically not invoked, is that health care providers have an obligation either to provide their services for free or to adjust the prices of their services according to the incomes of their clients. There is a reason why this kind of obligation is not advocated for by anyone, although Medicaid reimbursement schemes do attempt to invoke this approach to a limited extent. It is a form of price control that would dramatically curtail the supply of heath care services, as does occur in the Medicaid system. The other, and more typical, scenario is that the obligation to sustain this right falls on taxpayers. That is, the cost of health care to the health care rights holder is made affordable through taxpayer subsidies. This is the single payer model where the government, within limits defined by the government, picks up everyone’s health care tab.

So how does Obamacre fit into this picture? The fact is, it doesn’t. The centerpiece of Obamacare is not a universal right to healthcare but a universal obligation to obtain health insurance. Because of this, it does not recognize or grant rights of any kind but denies them while mischaracterizing these obligations as rights. What distinguishes all rights from obligations is the ability to refuse to exercise the right. If someone is not legally allowed to refrain from engaging in an activity, then there is no right, only an obligation.

Allegedly Obamacare guarantees a right to access health care by guaranteeing a right to obtain health insurance, either by purchasing a plan through the Obamacare exchanges, through an employer plan, or, if income qualified, through Medicaid. But since it is illegal to refuse to exercise this so-called right, it is not a right at all but a legal obligation. It cannot be both. The right to say no is an implication of the right to say yes.

In examining Obamacare’s so-called right to health insurance, the farce of using the language of rights can easily be exposed. This point is made quite obvious with the individual mandate, which imposes a fine on any person who does not purchase a government approved health insurance policy. Obamacare guarantees a right to health insurance only in the way that the draft guarantees a right to serve in the military.

Analysis of the misnamed "employer" mandate is somewhat subtler. This part of Obamacare demands that any company with 50 or more employees working 30 or more hours a week must include government approved health insurance as part of its employees’ compensation packages. This mandate is misnamed because it is not simply an employer mandate but an employer and employee mandate. In forcing employers to include health insurance as part of the compensation packages offered to its employees, the law is simultaneously forcing employees to accept health insurance as part of their compensation. In other words, the right to negotiate a compensation package that does not include health insurance but might include a higher wage instead, is denied.

Employers are concerned with the total cost of compensating employees and in general are indifferent to how that cost is divided between different elements of total compensation packages. On the other hand, employees might care a great deal about what form their compensation takes, and clearly there are employees who might rather have extra money in their pay checks each week than be covered by health insurance plans that they are unlikely to use. This is particularly true for younger workers. If an employee truly had a right to have health insurance included as part of his or her compensation package, then this mandate could not exist.

This doesn’t mean that there might not be a mandate, but it would look quite different. While I am not endorsing this, it might instead force employers to offer health insurance as part of a negotiated compensation package but only if the employee so desires. In other words the employer would not have the option of not including health insurance as part of a menu of compensation plan options. Since the current system does not allow for this or something like it, health insurance coverage, as in the case of the individual mandate, is an obligation on the part of employees and, in fact, a denial of a true right to employer provided health insurance.

Ultimately though, none of what the Obama administration views as rights with respect to health care or health insurance, either rhetorically or in practice, has much to do with the nature of rights as conceived by the American founders. It is a fact that true individual liberty requires that people have rights with respect to health care and health insurance. But these are only specific applications of a more general rights regime consistent with those three basic natural rights outlined in the Declaration of Independence — namely the rights to life, liberty, and the pursuit of happiness. When it comes to health care, no one should be denied these rights. What this means is that all people should have the right to purchase any kind of health insurance policies that they want while health insurance companies should be free to offer policies that meet those consumer desires. The exercise of this right requires that there be no restrictions on who can sell health insurance policies or to whom those policies can be sold. The same is true for health care itself. People should be allowed to arrange for any health care services they feel best suit their needs and address their health care problems and concerns.

In other words, health care rights, in the American tradition, require health care freedom.

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In June 2019 Roy Cordato retired from his full time position as Senior Economist and Resident Scholar at the John Locke Foundation and currently holds the position of Senior Economist Emeritus at the Foundation. From January 2001 to March 2017,… ...

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