Hostname: page-component-76fb5796d-wq484 Total loading time: 0 Render date: 2024-04-25T10:06:22.763Z Has data issue: false hasContentIssue false
  • English
  • Français

A Right to Health Care

Published online by Cambridge University Press:  01 January 2021

Pavlos Eleftheriadis
Get access Rights & Permissions [Opens in a new window]

Extract

Do we have a legal and moral right to health care against others? There are international conventions and institutions that say emphatically yes, and they summarize this in the expression of “the right to health,” which is an established part of the international human rights canon. The International Covenant on Social and Economic Rights outlines this as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,” but declarations such as this remain tragically unfulfilled. According to recent figures, roughly two billion people lack access to essential drugs or to primary health care. Millions are afflicted by infections and illnesses that are easily avoidable or treatable. In the developing world many children die or grow stunted and damaged for lack of available treatments. Tropical diseases receive little or no attention by the major pharmaceutical companies’ research departments. Is this a massive violation of the right to health? And if so, why does it attract so little attention? Is it because our supposed commitment to human rights and the rule of law is hypocritical and hollow? Or is it because the right to health is a special case of a right, so that these tragedies are no violation at all? Jennifer Prah Ruger summarized this puzzle when she wrote: “one would be hard pressed to find a more controversial or nebulous human right than the right to health.” In this essay I discuss three different theories of a right to health care. I conclude by offering my own reconstruction of one such theory.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 40 , Issue 2 , Summer 2012 , pp. 268 - 285
Copyright
Copyright © American Society of Law, Medicine and Ethics 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Prah Ruger, J., Health and Social Justice (Oxford: Oxford University Press, 2010): At 119.Google Scholar
See now the extremely useful essays collected in Pogge, T., ed., Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford: Oxford University Press, 2008).Google Scholar
Rawls, J., A Theory of Justice, revised edition (Oxford: Oxford University Press, 1999): At 109–112.Google Scholar
Id., at 171–176.Google Scholar
For the idea of “constitutional essentials,” see Rawls, J., Political Liberalism, revised edition (New York: Columbia University Press, 1996): 227–230. This is also an idea explored by Scanlon in his “Human Rights as a Neutral Concern” in Scanlon, T., The Difficulty of Tolerance: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2003): At 113.Google Scholar
For very useful overviews. See the essays collected in Clapham, A. Robinson, M., Realising the Human Right to Health (Zurich: Rüffer and Rub, 2009) and Gruskin, S. Grodin, M. Annas, G. J. Marks, S. P., eds., Perspectives on Health and Human Rights (New York and London: Routledge, 2005).Google Scholar
Constitution of the World Health Organization, 1946/2006. There is an ongoing debate on the adequacy of this definition in light of its maximal ambition. See, for example, the more focused attempt at linking health with the ability of a person to adapt to his or her physical circumstances offered by Huber, M. et al. , “Health: How Should We Define It?” BMJ 343 (2011): D4163.CrossRefGoogle Scholar
UN Committee on Economic, Social and Cultural Rights, “The Right to the Highest Attainable Standard of Health – General Comment 14 (2000),” 22nd Session, Geneva, April 25-May 12, 2000. Special mention should be made in the U.N. Convention on The Rights of the Child, which came into force in 1990. Article 24(1) reads: “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.” According to UNICEF, this Convention has been ratified by all countries of the world, except Somalia and the USA.Google Scholar
General Comment 14, at para. 31.Google Scholar
Id., at para. 9.Google Scholar
Id., para. 11.Google Scholar
Id., para. 33.Google Scholar
Id., para. 36.Google Scholar
Scanlon, T., “Human Rights as a Neutral Concern,” in Scanlon, T., The Difficulty of Tolerance: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2003): At 113.CrossRefGoogle Scholar
Singer, P., “Famine, Affluence and Morality,” Philosophy and Public Affairs 1 (1972) 229–243.Google Scholar
Id., at 231.Google Scholar
Id., at 232.Google Scholar
Id., at 235.Google Scholar
See Ruger, , supra note 1, at 127.Google Scholar
See Singer, , supra note 15, at 235.Google Scholar
Williams, B., “A Critique of Utilitarianism,” in Smart, J. J. C. Williams, B., Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973): At 110. See also Williams, B., “The Point of View of the Universe: Sidgwick and the Ambitions of Ethics,” in Williams, B., The Sense of the Past: Essays in the History of Philosophy, Burnyeat, Myles, ed. (Princeton: Princeton University Press, 2006): At 277.Google Scholar
Sidgwick, H., The Methods of Ethics, 7th edition (London: Macmillan, 1930): At 382. He continues as follows: “And here again, just as in the former case, by considering the relation of the integrant parts to the whole and to each other, I obtain the self-evident principle that the good of any one individual is of no more importance, from the point of view (if I may say so) of the Universe, that the good of any other… And it is evident to me that as a rational being I am bound to aim at good generally — so far as it is attainable by my efforts – not merely at a particular part of it” (at 382).Google Scholar
Id., at 382.Google Scholar
See Williams, , supra note 21, at 294.Google Scholar
Id., at 295.Google Scholar
Raz, J., The Morality of Freedom (Oxford: Clarendon Press, 1986): At 165–192; MacCormick, N., “Rights in Legislation,” in Hacker, P. M. S. Raz, J., eds., Law, Morality and Society: Essays in Honour of H. L. A. Hart (Oxford: Clarendon Press, 1977): At 189.Google Scholar
Hessler, K. Buchanan, A., “Specifying the Content of the Human Right to Health Care,” in Rhodes, R. Battin, M. P. Silvers, A., eds., Medicine and Social Justice: Essays on the Distribution of Health Care (Oxford: Oxford University Press, 2002): 84–96. The essay is now reprinted in Buchanan, A., Justice and Health Care: Selected Essays (Oxford: Oxford University Press, 2009): At 203.Google Scholar
Id. (Hessler and Buchanan), at 84.Google Scholar
Id., at 89.Google Scholar
Id., at 91.Google Scholar
Id., at 91.Google Scholar
Id., at 86: “The right to health care, on our understanding, does not include rights to clean water, adequate sanitation, or the careful placement of toxic waste. In this sense, the right to health care picks out a subset of the entitlements that comprise the broader right to health.”Google Scholar
Id., at 92.Google Scholar
Id., at 85.Google Scholar
Id., at 92.Google Scholar
Id., at 94.Google Scholar
Id., at 92.Google Scholar
Id., at 94.Google Scholar
Entirely similar problems affect, in my view, the interest theory of rights as advocated by Raz, Joseph. See for example his views on the right to health in Raz, J., “Human Rights in the Emerging World Order,” Transnational Legal Theory 1 (2010): At 45–47. For a detailed discussion of the interest theory of rights, see Eleftheriadis, P., Legal Rights (Oxford: Oxford University Press, 2008) and for a response to Raz's theory of human rights, see Eleftheriadis, P., “Human Rights as Legal Rights,” Transnational Legal Theory 1 (2010): 371.Google Scholar
See Scanlon, T. M., “Adjusting Rights and Balancing Values,” Fordham Law Review 72 (2004): 1477.Google Scholar
Pogge, T. W., “Human Flourishing and Universal Justice,” in Pogge, T., World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity Press, 2002): At 49.Google Scholar
Id., at 46.Google Scholar
Id., at 13.Google Scholar
Id., at 66.Google Scholar
Id., at 49.Google Scholar
Id., at 45.Google Scholar
Id., at 66.Google Scholar
Id., at 49.Google Scholar
Id., at 49.Google Scholar
See, for example, the analysis offered by O'Neill, O., Faces of Hunger: An Essay on Poverty, Justice and Development (London: Allen & Unwin, 1986): 97–143. See also O'Neill, O., Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996): 154–183.Google Scholar
See, for example, Weinrib, E. J., “The Case for a Duty to Rescue,” Yale Law Journal 90 (1980): 247; Ripstein, A., “Three Duties to Rescue: Moral, Civil and Criminal,” Law and Philosophy 19 (2000): 751–779.CrossRefGoogle Scholar
Kant, , Metaphysics of Morals, 6:306, in Kant, Immanuel, Practical Philosophy, trans. and ed. by Gregor, M. J. (Cambridge: Cambridge University Press, 1996): 450; Rawls, J., A Theory of Justice, rev. ed. (Oxford: Oxford University Press, 1999): 99 (the text is identical to the 1971 edition at 115); Waldron, J., “Special Ties and Natural Duties,” Philosophy and Public Affairs 22 (1993): 3.Google Scholar
For some illuminating reflections on humiliation and poverty, see Margalit, A., The Decent Society, trans. by Goldblum, Naomi (Cambridge, Mass.: Harvard University Press, 1996): At 225–231. O'Neill, Onora puts the point as a principle rejecting “injury.” See O'Neill, , Between Justice and Virtue, at 164–183.Google Scholar
For some similar arguments, see Anderson, E. S., “What Is the Point of Equality?” Ethics 109 (1999): 287–337.CrossRefGoogle Scholar
General comment 14 includes a provision for “core obligations” which State parties must satisfy, including “the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups, access to basic shelter, housing and sanitation, an adequate supply of safe and potable water, essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs, the equitable distribution of all health facilities, goods and services and implementing a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population.” This list leaves out important components of modern health care, such as all chronic care, rehabilitative care, reconstructive care (including transplants), cosmetic surgery and psychological services.Google Scholar
Hunt, P. Backman, G., “Health Systems and the Right to the Highest Attainable Standard of Health,” in Clapham, A. Robinson, M., Realising the Human Right to Health (Zurich: Rüffer and Rub, 2009): 40–59, at 41. See also Backman, G. Hunt, P. Khosla, R. et al. , “Health Systems and the Right to Health: An Assessment of 194 Countries,” The Lancet 372 (2008): 2047–85.Google Scholar