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Health Care as a Constitutional Right?
Opinion and Analysis Paper
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4/20/2009

Jay B Davis

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Healthcare as a Constitutional Right?

Article Summary

Writing for the Wall Street Journal on April 10, 2009, Gerald Seib provides details into the

“Health-Care Plan That Could Bridge the Divide.” The title is an appropriate reference to the debate

in Congress over how best to answer America’s Health-Care concerns. The proposed legislation is

the work of Senator Robert Bennett (R. Utah) and Senator Ron Wyden (D. Oregon). The two

Senators hope to accomplish what both parties have been attempting over the last decade; a

Health-Care solution that will provide a little of what both parties desire.

The bill would require everyone to acquire health coverage for themselves and their

children through a pool of private insurers. Families at or below the poverty line would have their

premiums paid in full by the government, while those above the poverty line would be provided

subsidized coverage up to 400% of the poverty line. The crux of the plan is allowing individuals

and not the government to choose their own health plan. No option exists in the bill for a

government provided plan; a key issue for Republicans. The goal of the plan as opined by Mr. Seib,

“is to use the power of government to guarantee coverage, while putting individuals in charge of

their own health plans.” (Seib)

The article is presented as an objective overview of the plan, presenting the issues that both

sides disagree on and where the two Senators hope to find consensus among their colleagues. I

believe that Mr. Seib, Congress, the Administration and some Americans miss an important point

when discussing healthcare in general; healthcare as a constitutional right doesn’t exist.

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Healthcare Background

Healthcare is as old as humanity itself. For millennia people have sought to cure ailments,

receive emergency care for life threatening injuries and develop preventative treatments and

vaccines. In our early history, people who sought treatment by a doctor often bartered for services,

exchanging livestock or work for medical care. Most physicians visited patients in the home until

the advent of the modern day Hospital and later Emergency Room facilities. Today modern

medicine utilizes Hospitals, Outpatient Surgery Centers, Rehabilitation Centers, Primary Care

Physicians, Specialists and Insurers to provide and pay for treatment.

Many groups argue that healthcare is a fundamental right already provided under the

Constitution.1 Our founding fathers established,

“ We hold these truths to be self-evident, that all men are created equal, that they are endowed

by their Creator with certain unalienable Rights, that among these are Life, Liberty and the

pursuit of Happiness.”2

It is not possible to have any of the three unalienable rights without health, but a stretch to further

this logic to conclude that healthcare is right guaranteed by government.

The United States Census Bureau reports that in 2007 (the latest year for which statistics

are available), 15.3% of the total U.S. population were without health insurance.3 This amounts to

45.7 million Americans; a large number by any measure. The same report indicates that of the total

population, 67.5% are covered by private insurance and 27.8% by government programs such as

1 “Statement of Common Purpose”, Healthcare for America Now, Citing 850 Organizations that support the
premise that Healthcare is a fundamental right as guaranteed under the Constitution.
http://healthcareforamericanow.org/page/-
/documents%20for%20download/Legislative%20Tool%20Kit/statement-of-common-purpose.pdf
2 Declaration of Independence, July 4, 1776,

http://www.archives.gov/exhibits/charters/declaration_transcript.html
3 DeNavas-Walt, Carmen, Bernadette D. Proctor, and Jessica C. Smith, U.S. Census Bureau,

Current Population Reports, P60-235, Income, Poverty, and Health Insurance Coverage in the United States:
2007, U.S. Government Printing Office, Washington, DC, 2008, p 19
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Medicaid or Medicare. The World Health Organization reports that as a nation, 45.1% of our total

expenditure on health care is paid for by the government, while 54.9% is accounted for by private

sources.4 So if these figures are accurate, the government spends almost as much as private

industry for the 27.8% of the population it covers. Clearly there exist problems in government

financing of healthcare.

Support: Healthcare is a Constitutional Right

Advocacy groups such as Healthcare for America Now support government provided

healthcare as right but go much further opining that it is government’s “responsibility to guarantee

quality, affordable healthcare for everyone.”5 According to Healthcare for America Now, the

government must play a central role in regulating, financing and providing healthcare coverage for

everyone. The current system is unaffordable for families, businesses and government. Racial

disparities exist in healthcare coverage that only government regulation would remedy.

As a constitutional right afforded to all Americans, the government would subsidize

coverage for those who could not afford it and the remainder of Americans would have coverage

paid for by employer contributions to a central government funding pool based on each employee’s

income. Some advocates point to the U.S. Supreme Court decision in ESTELLE v. GAMBLE whereas

the court reviewed the 8th Amendment as it applied to prisoners and “cruel and unusual

punishment.”6 In this case, the Court found that prisoners had a fundamental right of healthcare

from the government while incarcerated. Other than this case, little information could be located

from available sources on the logic behind the right to healthcare other than “life, liberty and

pursuit of happiness.”

4 “Health System Resources”, World Health Organization, http://www.who.int/entity/whosis/whostat/4.xls

Retrieved on April 15, 2009
5 “Statement of Common Purpose”, Healthcare for Americans Now!
6 Estelle v. Gamble, 429, U.S. 97, 1976
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Opposition: Healthcare as a Constitutional Right

Opponents of Healthcare as a Constitutional Right cite the fact that Healthcare is not found

in the Constitution. Friedrich Hayak, a noted professor of Economics at the University of Chicago,

stated that any attempt by government at a monopoly of services such as healthcare would be

“established solely to enhance the power of government and as a result the public is much worse

served than it would otherwise be.”7 This thesis appears to be credible as the State of Georgia

recently denied treatment for a Medicaid recipient on the grounds that the state should be the

ultimate arbiter in all cases involving medical care so that “resources are fairly allocated.”

Attorneys for the state also argued that the physician’s orders were merely recommendations or

suggestions in the type of care the state should authorize. The government appears keen on

healthcare rationing; however the 11th Circuit disagreed and upheld a lower court decision giving

the physician the right to determine care.8

Opinion

The topic of Healthcare and its associated costs, access and benefits is too broad of a topic to

be adequately covered in a short paper but one that we as a society must find solutions to ensure

that the 45 million Americans who are currently uninsured have access to affordable healthcare.

Healthcare as a right can be viewed from many perspectives. I believe that your free access to

healthcare is a fundamental human right, but having taxpayers on the hook for the bill is not.

Likewise, Government has neither the right nor responsibility to provide healthcare. State

governments should regulate the healthcare industry and insurers providing coverage. Should

pools need to be established to provide basic care for those that cannot afford it, coverage plans

should have actuarially sound rates so that tax payers are not left holding the bag.

7 Hayak, Friedrich A., Law, Legislation and Liberty, Vol. 3, University of Chicago Press, 1979, p 56-57
8 Moore v. Medows, 1:07-CV-631-TWI, 2007 U.S. Dist LEXIS 47087
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States have developed pools for wind-storm coverage and other types of catastrophic losses

so establishing plans to cover catastrophic illness shouldn’t be out of the question. Providing a

baseline coverage plan focused on preventative medicine and the basics, while excluding

catastrophic illnesses should be economical and available to all. If any government intervention is

necessary, it should be in the regulation of private companies providing such coverage. Healthcare

is a subject that the Federal government is already much too involved in and steps should be taken

to reduce the level of involvement with more of a focus on private industry. Fundamentally we all

have a right to obtain healthcare, but not to force someone else to pay for it.
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Works Cited

Declaration of Independence, US Congress, 1776,

http://www.archives.gov/exhibits/charters/declaration_transcript.html

DeNavas-Walt, Carmen, Bernadette D. Proctor, and Jessica C. Smith, U.S. Census Bureau, Current

Population Reports, P60-235, Income, Poverty, and Health Insurance Coverage in the United

States: 2007, U.S. Government Printing Office, Washington, DC, 2008, p 19

ESTELLE v. GAMBLE, 429, U.S. 97, 1976,

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=429&invol=97 , Retrieved

on April 12, 2009

Haft, Howard, “Is Health-Care a Right or Privilege? – Health Policy”, Physician Executive, January

2003, http://findarticles.com/p/articles/mi_m0843/is_1_29/ai_96500897/ , Retrieved on

April 15, 2009.

Hayek, Friedrich A., Law, Legislation and Liberty. Vol. 3, University of Chicago Press, 1979, p 56-57

Moore v. Medows, 2007 U.S. Dist LEXIS 47087

Seib, Gerald F., “A Health-Care Plan That Could Bridge the Divide”, The Wall Street Journal, April 10,

2009, A2

Statement of Common Purpose, Healthcare for America Now!,

http://healthcareforamericanow.org/page/-

/documents%20for%20download/Legislative%20Tool%20Kit/statement-of-common-

purpose.pdf , Retrieved on April 10, 2009

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Article