Suppose It’s an Obligation and Not a Right?

Suppose we frame the current health insurance* debate in a different way?

*It is about insurance. “Health insurance”=/=”health care,” although the former should lead to the latter.

Rather than arguing whether American individuals have a right to health care (beyond what you can already find in EMTALA, and please God let’s not consider repealing that), because people get very huffy about this concept, can we ask a different question?

Should we Americans collectively assume an obligation to “promote the general Welfare” by providing everyone access to basic health services, in the way that we have obliged ourselves to provide all children with access to a free public education (largely from each state’s constitution, with the exception of protections for disabled children)?

Consider this:

We have already agreed, by enacting EMTALA in 1986, that as a society we don’t want to see people die because an ER turns them away if they can’t pay. We have already assumed that obligation. But waiting until people are very nearly dead before we assume any obligation for their care is extremely expensive, and in the case of many ailments, just cruel. Think heart disease. Think diabetes. Think cancer.

We have already agreed, by enacting mandatory vaccination laws (although we have wobbled a little on this one with exemptions), that we have an obligation to protect the herd by requiring this simple public health measure. We also have quarantine laws to fulfill our obligation.

We have already agreed that we have an obligation to provide safe water to all (coughs Flint coughs), also pretty basic for health.

We have also agreed, via our Supreme Court, that it is a violation of the Eighth Amendment prohibition against cruel and unusual punishment to deprive prisoners of necessary medical care in Estelle v. Gamble, 429 U.S. 97 (1976). Let me repeat that. People in prison have a right to medical care (although even they can be charged co-pays).

It does not seem like that far a reach to propose that we have an obligation (collectively) to provide people who are not incarcerated access to health care before they show up at the ER, if for no other reason than to reduce the expensive ER visits that we are already obligated to fund.

Given the way our system is currently set up, rather than nationalizing the health care system, which sounds like quite the disaster, or providing everyone with a government doctor (which also sounds like a disaster, given how the VA has been struggling), making sure everyone has health insurance coverage seems the least disruptive path. Although nationalizing the insurance companies has a brutal appeal to me, and eliminating the middlemen in the long run through gentler measures will probably be helpful.

So for those of you who don’t want to grant other people individual rights in this area, ask whether you might be shirking the societal responsibility that you have already undertaken. And see also this interesting analysis of the free rider problem in this area.

Not your brother’s keeper, you say? Can we have a talk about the corporal works of mercy?

The Dark Goddess of Replevin is a lawyer in recovery. She majored in Russian and has a varsity letter in extemporaneous speaking.

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John Irvinermcnuttpjnelson Recent comment authors
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I appreciate how changing a few words can sometimes change minds. I liked your piece, and your clever take on this. However, your change did not do it for me; the debate remains the same. PJnelson is on to something, I think. No one in medical care could ever help me be healthy. But, that was not their, or our job. Our job was to universally and equally care for everyone who is sick with what we can do to help. The “what we can do to help” is debated, for sure. But, bringing health into the equation is wrong… Read more »


I think it can be said that healthcare should be described as divided into Basic Needs and Complex Needs. I agree that the semantics would be a challenge to define. But, the problem is that Basic Needs are really not efficiently insurable from an actuarial standpoint. Complex Needs are efficiently insurable, at least for a population of @400,000 citizens. Remember, our nation is alone among the advanced/developed nations of the world without a nationally sanctioned and community managed strategy for assuring that Primary Healthcare is equitably available AND ecologically accessible for each citizen, community by community. . Remember also that… Read more »