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DAVIDSON: Is health care a constitutional right?

• Aug 4, 2017 at 3:00 PM

“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” — The Declaration of Independence of the United States of America.

It may be a lofty beginning to a community column, but I thought it was time that someone had a conversation about the definition of health care as a right.

What is a "right”?

Certain rights are easy to understand in a societal context. They were accepted from the beginning. They're accepted to this day. In some cases, a broader definition of the term "right" is applied, but not necessarily accepted by everyone who is involved in the crafting of policy. This fundamental disconnect in our understanding of the term is a big reason we can't seem to talk about the health care. It sometimes appears as if opposing sides are shouting past one another rather than having a serious conversation about this important issue.

In my world of medicine, there is currently a debate about whether or not health care is a right. The phrase "health care" never appears in the Declaration of Independence, nor the U.S. Constitution. Are we to then extrapolate that the framers intentionally left it out as a declaration that health care was not a right?

First, let us define health care in its historical context.

In the late 18th century, health care would be unrecognizable relative to health care today. It would be as texting or email are to the Pony Express. Standard treatment for various ailments might include the administration of leeches or the application of tourniquets. The X-ray machine would not be invented until 1895, and penicillin would not be discovered until 1928. The idea that an explicit right to such a rudimentary system surely could not have crossed the minds of Hamilton, Madison or Jefferson.

Certain aspects of society were quite well developed in the era of our Founding Fathers. They had suffered under a tyrannical ruler from across an ocean with taxation without representation and the subjugation of their own sense of self for the sake of their king. Their situation required the bearing of arms against such tyranny and the enumeration of the specific rights of a free press, and freedom of and from religion. The persecution of early settlers and the colonists by the crown, and the silencing of dissenting opinion, demanded that such rights be specifically stated in the founding documents of our new nation.

However, throughout our history, Congress, the presidency and the courts have agreed that there are certain unenumerated rights living within the Constitution that must be uncovered by scholars and statesmen. The right of African slaves to live freely was not codified by those white men of the 1700s, but a great hero declared in 1863 that all men shall indeed be free. Congress and the courts supported this proclamation and these rights, though degenerates and despots have challenged this position since the Emancipation Proclamation.

Similarly, women were not deemed worthy of the right to vote, but through the actions of such heroes as Susan B. Anthony, Alice Paul and Elizabeth Cady Stanton, this fundamental right was secured in 1920 through the 19th Amendment and has been the law of the land for nearly 100 years.

So, it stands to reason that health care as a right should not be accepted as dogma without sufficient discussion and vetting through legislation, rebuttal and review by the courts. For those who believe it is a right, we cannot simply state this as fact and stand in bewilderment when those on the other side of the debate do not agree. The disagreement should not be discarded out of hand as a lack of compassion or concern for one’s fellow human beings. Some strict constructionist constitutional scholars believe strongly that the only rights guaranteed by the U.S. Constitution are those that are explicitly stated, and anything else is overreach, bordering on tyranny.

But let us look at the current debate with a degree of skepticism. I would argue that the majority of elected officials who do not believe the government should be involved in the wellness and care of its citizens are not constitutional scholars, nor strict constructionists. I would argue that most members of Congress would vote to take away health care based upon purely political and financial grounds.

The political reality of voting with one’s caucus and avoid a primary challenge, and the financial reality of voting in the interest of one’s biggest donors. I doubt any of these members consider the question of health care as a right. I believe it is an exercise of pure politics. And political calculations are not the remedy our citizens need.

— By Rob Davidson, Tribune community columnist

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