Abstract
Many international declarations state that human beings have a human right to health care. However, is there a human right to health care? What grounds this right, and who has the corresponding duties to promote this right? Elsewhere, I have argued that human beings have human rights to the fundamental conditions for pursuing a good life. Drawing on this fundamental conditions approach of human rights, I offer a novel way of grounding a human right to health care.
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Notes
My notion of the fundamental conditions for pursuing a good life will prompt some to think of Martha Nussbaum’s central capabilities approach. Elsewhere, I have explained in greater detail how the two views differ. See, e.g., [3, 4]. All too briefly, the hallmark of Nussbaum’s approach is her emphasis on our opportunities to choose to do certain things, i.e., capabilities, rather than on what we actually choose to do, i.e., functionings. The problem is that a significant number of human rights cannot be adequately explained in terms of capabilities. For example, capabilities do not seem adequate for explaining what might be called status rights, which are rights that protect our moral status as persons. In the UDHR, the right to recognition everywhere as a person before the law (Article 6); the right to equal protection before the law (Article 7); the right against arbitrary arrest, detention, or exile (Article 9); the right to a fair and public hearing (Article 10); the right to be presumed innocent until proven guilty (Article 11) are all status rights, as they protect our moral status as persons. If Nussbaum’s approach were able to explain these rights, it would imply that one can sometimes choose not to exercise these rights, since capabilities are concerned with our real opportunities to choose. But it does not seem that one can sometimes choose whether or not to exercise these rights. For instance, it does not seem that one can sometimes choose not to be recognized everywhere as a person before the law; choose not to have equal protection before the law; choose to be arrested arbitrarily; choose to have an unfair hearing; and choose to be presumed guilty. Hence, capabilities do not seem particularly well-suited to explain these rights. In contrast, the fundamental conditions approach can explain status rights. When we pursue the basic activities, conflicts with others are bound to arise. If and when such conflicts arise, we need guarantees that we would be treated fairly and equally. Fair trial, presumption of innocence, equal protection before the law, not arrested arbitrarily, and so on serve to ensure that we are treated fairly and equally. As such, they are things that human beings qua human beings need whatever they qua individuals might need in order to pursue the basic activities. As such, the fundamental conditions approach can explain why there are these human rights.
Rights could also have non-instrumental importance in addition to having instrumental importance.
See Elselijn Kingma [12] for a discussion of Boorse regarding this issue.
See, e.g., James Griffin [13, p. 101].
See, e.g., Richard Wilkinson and Michael Marmot [14].
The term “deep partiality” comes from James Griffin [21, p. 86].
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Acknowledgments
I would like to thank Dan Brudney, Collin O’Neil, Wibke Gruetjen, and audiences at the Conference on “Is Health Care a Human Right?” at the University of Chicago and the Working Papers in Ethics and Moral Psychology at Mount Sinai for their helpful comments on earlier versions of this article.
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Liao, S.M. Health (care) and human rights: a fundamental conditions approach. Theor Med Bioeth 37, 259–274 (2016). https://doi.org/10.1007/s11017-016-9373-9
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DOI: https://doi.org/10.1007/s11017-016-9373-9