Via Doug Bandow, Theodore Dalrymple makes an argument against a right to health care—though it applies to positive or welfare rights more generally—that I used to find persuasive, and now find less so:
Where does the right to health care come from? Did it exist in, say, 250 B.C., or in A.D. 1750? If it did, how was it that our ancestors, who were no less intelligent than we, failed completely to notice it?
If, on the other hand, the right to health care did not exist in those benighted days, how did it come into existence, and how did we come to recognize it once it did?
Now, I assume—or at least hope—Dalrymple is perfectly capable of thinking of any number of genuine rights that ancient societies failed to recognize. Indeed, our ancestors “failed to notice” a great many of the rights we now consider fundamental at very many times in the past, so he can’t just mean that historically neglected rights are necessarily invalid. What I think he means is that rights are usually thought of as being universal, what people are in principle entitled to in any time or place just by dint of their humanity. We can say of Medieval serfs that they should have been treated very differently than they were by their societies, but since “ought” implies “can,” it seems absurd or incoherent to suggest that they should have had access to antibiotics or chemotherapy or any of the myriad other relatively recent innovations that constitute modern health care, let alone that they had a right to these things. What sort of right is it, after all, that cannot even in principle be satisfied? But supposing rights are universal, the thinking goes, they must have enjoyed (in principle) the same rights that we do, so a right that would have been impossible for them to claim must not be a genuine right today, even if such a purported right is now technologically satisfiable. Which I think is what Bandow is getting at when, in his own post, he asks precisely what level and kind of health care we’re all entitled to—the idea being that any concrete answer will either seem to wish away scarcity or appear contingent or arbitrary in a way we don’t expect abstract rights to be.
If the “right to health care” were really a claim on specific set of goods or services, the argument would go through well enough. But we can conceive of this right—and of positive rights generally—in another, more plausible way. What we can instead say, speaking very roughly, is that people have a right to the aid of others in avoiding severe harms when the cost of providing that aid is relatively low—a right that others help me when the burden of helping on them is relatively slight compared with the benefit to me. Alternatively, we might frame this as a sort of share right, either to some minimal proportion of social resources, or to a quality of life not too radically short of the prevailing level when this is possible. I’m not arguing that there is such a right, I’m just arguing that there isn’t a formal problem with asserting such a right timelessly and universally.
If this sounds doubtful, consider some less controversial negative rights that just about everyone thinks we have—rights against the imposition of certain kinds of harms. In a small and technologically primitive community, we can probably think of all sorts of harms that individuals simply cannot realistically help but impose upon each other: the spread of various lethal contagious diseases, air and water pollution from human waste or cooking fires. It is not literally impossible to avoid imposing these externalities—everyone could go off into the mountains and commit suicide or, less dramatically, refrain from cooking their meat—but insofar as that would leave everyone very much worse off, the burden of avoiding these harms is too high to generate a binding duty or a corollary right. At a different level of development, the interest in avoiding these harms might be much greater relative to the cost of refraining from the behaviors that impose them, and we might say that there is such a duty and right. Now, in one sense, my neighbor and I both have some “new” rights not enjoyed by our ancestors: to wit, the right that the other not leave bonfires or big mounds of human feces in the front yard. But jumping up a level of abstraction, we’ve got the same conditional right not to be involuntarily subjected to relative diminutions of quality of life above a certain level, when the relative cost to each of us of not subjecting the other is below a certain level. Whether I’ve picked especially good examples here is less important than whether we think it’s plausible to conceive of our particular rights and duties varying across technological contexts, while the rights functions that determine our concrete obligations and entitlements remain fixed and universal.
We can say something similar about this argument from Wesley J. Smith:
I think the biology of the matter is important because it raises the question of how can meat-eating be immoral when an omnivorous diet is not only natural but offers us the best balance of nutrients. Vegans, for example, must take a supplement to obtain Vitamin D. Hence, I don’t see how eating a naturally human diet can ever be considered immoral.
Now, I’m not entirely sure how Smith thinks this argument is supposed to work, why he imagines “naturalness” is relevant, why he imagines modern factory farming is plausibly described as “natural,” or how the balance of nutrients fits into it. (I presume he would consider it beside the point if we discovered tomorrow that toddler is the most nutritious sort of meal.) But one way it might work is along these lines: Our ancestors would probably not have survived had they not killed and eaten animals; it cannot have been wrong for them to do what was required to survive; therefore killing and eating animals must be morally permissible. I don’t think I’d actually accept the second premise without qualification, but I think it’s probably fine in this context. Now, this is a little different from the previous case, because we might think that what we owe our fellow humans depends on the reciprocal obligations we’d impose on each other in a social contract formed under certain idealized bargaining conditions, and not so much when it comes to cows. Partly for that reason, I’m extraordinarily reluctant to use the language of “rights” when talking about how we ought to treat animals. But I don’t find it inconceivable, as Smith seems to, that it could have been perfectly moral for our ancestors to kill and eat animals to avoid death or serious illness, while it is not so moral for us to do the same—or, more accurately, to do rather worse in terms of how livestock are typically treated—in order to avoid the need to take Vitamin D supplements.
Update: I should probably be clear that I do still agree with the original sentiment this far: A “right to health care” isn’t going to make sense as a fundamentally distinct category of entitlement, but only as the upshot under certain conditions of a general duty to aid. So it’s not that there’s something metaphysically special about health care, but rather that if you think there’s such a duty to aid, provision of health care might turn out to be the most efficient way to satisfy it, to the extent that it’s both important to people’s welfare and hard for them to obtain on their own. An obvious upshot of this is that a practical “right to health care” as an entitlement in a particular context can’t be an unbounded one—it can’t mean that you have a right to whatever treatment might help ameliorate your condition or extend your life, regardless of cost.