2. What Are Rights?
Rights are entitlements.
Entitlements to perform or not perform some action
Ex: right to free speech, right to vote, right not to incriminate oneself
Entitlements to be or not be in some state
Ex: right to life, right not to be impoverished
Entitlements that others perform or not perform some action
Ex: right to emergency health care, right not to be assaulted, property rights
Entitlements that others be or not be in some state?
Ex: right for you to respect me?
3. Legal Rights vs. Moral Rights
Legal rights are established by a legal system.
Example: The right to vote starting at age 18 in the United States,
regardless of race or gender.
Moral rights are grounded in morality.
Example: Right to life
Many, including Daniels, think that legal rights should reflect moral rights.
Example: Right to free speech
Notice that rights hold even when a violation of rights would bring about
more good.
4. Positive Rights vs. Negative Rights
Positive right: right requiring others to do something beneficial for
the right-bearer.
Ex: right to education, right to health care
Negative right: right requiring others to refrain from doing
something harmful or restrictive to the right-bearer.
Ex: property rights, right to free speech
Health-care rights are part of a larger family of positive “welfare”
rights.
5. Daniels Thesis
We have a right to health care because we have a
right to equality of opportunity, and health care
protects or restores equality of opportunity.
6. Some theories of distributive justice:
Libertarian, Utilitarian, Rawlsian
7. Libertarian
Libertarian: emphasis on individual liberty and on
property rights.
Strong negative rights, very limited positive rights.
Libertarians tend to think of the right to health care
as a “bottomless pit.”
8. Utilitarian
Utilitarians aim for the greatest good for the greatest
number.
Utilitarian argument in favor of a right to health care: reduces
suffering and promotes people contributing to good in the
world.
Yet it’s hard for utilitarians to justify rights to certain
treatments when that money could produce greater good
elsewhere (e.g. long-term care). There are also distributive
concerns.
9. Rawlsian “Equality of Opportunity”
Rawls: What principles would you choose if you didn’t know
your own personal circumstances (if you were behind the “veil
of ignorance”)?
One such principle protects equality of opportunity.
Daniels says that we can use this principle to argue for the
right to health care.
10. Equality of Opportunity and Health Care
Disease and disability limit our opportunities.
Health care preserves or restores our range of opportunities by ensuring
that we can exercise our physical, emotional, and cognitive capabilities as
well as possible.
But health care’s contribution is limited:
Income distribution also affects opportunities.
Normal distribution of talents and skills also affects opportunities.
Note: equality of opportunity ≠ equality of starting point or equality of result.
11. What Does the Right to
Health Care Include?
Daniels: It includes effective treatment of disease and disability to
maintain or restore “normal functioning.”
It does not include the right to receive enhancements.
It does not give everyone the right to have all of their health care needs met.
Entitlements are system-relative: the system should protect equality of
opportunity, but there are constraints on resources and technology.
Difficult issues:
What counts as a “reasonably effective” treatment?
Hard cases: abortion, infertility treatment, growth hormone treatment
Allocating limited resources
12. Allocating Limited Resources
Daniels: In allocating limited resources, all things being equal, treat
conditions that more severely impact patients’ range of opportunities.
But other factors are important too.
Numbers: Should you treat a severe condition affecting just a few people or a
less severe condition affecting many people?
Degree of benefit: Is it fair to give a scarce resource to those who would most
benefit? Or should we give a broader range of people the opportunity to
benefit?
13. Allocating Limited Resources
Allocating ventilators during the COVID-19 pandemic
Impact on the patient’s range of opportunities (Daniels)
Does this favor treating younger patients over the elderly?
Degree of benefit
Favors treating younger, healthier patients.
Criteria for allocating limited resources from the AMA Code of Medical Ethics, Opinion 11.1.3:
Urgency of medical need
Likelihood and anticipated duration of benefit
Change in quality of life
What to do when there are not substantial differences amongst patients? Use an objective and
transparent mechanism
Public justification
14. Supplementary Tiers
According to Daniels, there must be a basic tier of health care that
everyone has access to.
What about supplementary tiers, in addition to the basic tier?
Daniels: Why not? (cf. security systems, safer cars, private schools)
But be careful: The supplementary tier may drain resources from the
basic tier or undermine political support for it.
