1. Introduction

Richard Lamm (1998), in his paper "The Case Against Making Healthcare a Right", raises a myriad of concerns with the widely contested "Right to Health" (RtH). Most importantly, he argues that, given the need to trade off different medical treatments and social goods in the context of unceasing advancement of medicine paired with fixed budgets, health policy cannot be constructed within a rights framework (Lamm 1998).

This paper argues that Lamm's (1998) concerns do not stem from the RtH's status as a right, i.e., are not inherent to the RtH qua right, by highlighting two crucial misunderstandings in his argument. By drawing on a rights framework based on Arendt (1951), Section V contests Lamm's (1998) assumption that rights necessarily are absolute claims irreconcilable with trade-offs and Section VI disputes the assumption that substantive rights claims must always be directly processed by courts.

First, the paper will provide a brief overview of the RtH. Second, the Arendtian rights framework employed in this essay will be outlined. Third, the paper will give a concise overview of Lamm's (1998) overall critique against the RtH, before laying out and refuting, one after the other, each of his two strands of argument. In doing so, the paper will draw on the Arendtian rights framework and the works of Rumbold et al. (2017) and Voorhoeve et al. (2016) to show that the RtH qua right can escape Lamm's (1998) concerns.

2. The Right to Health (RtH)

The RtH has its roots in the World Health Organisation's 1946 Constitution and is stated in its most well-known form in the International Covenant of Economic, Social and Cultural Rights as "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" (World Health Organisation 1946; OHCHR 1966: 4). What precisely the "highest attainable standard of health" refers to is contested and sustains the continuing debate around the RtH (World Health Organisation 1946: 1). The RtH is recognised at both the international and national levels and is even to be found in the constitutions of countries such as Brazil and South Africa (Phillips 2004; Ferraz 2011). Importantly, Lamm's (1998) concerns around the RtH stem from this exact definition and the particular conception of rights it implies and are not inherent to the RtH qua right.

3. Arendtian Rights Framework

Although the precise normative status of Hannah Arendt's (1951: 390) "right to have rights", outlined in The Origins of Totalitarianism, remains contested, Arendt clearly signals that most rights we consider to be human rights - the right to education, healthcare, freedom of speech and others - are not pre-political, natural and inherent to "the human being qua human being", but are conditional on membership in a political community (Azar 2019; Sari 2021: 358). Arendt became aware of this given her own experience of statelessness after the 1933 Nuremberg Laws (DeGooyer et al. 2018). She further flags that the "right to have a right" is the sole right not to emerge from the nation-state, and thus highlights a contradiction between the theoretically universal and inalienable nature of human rights, as stated in e.g. the 1948 Universal Declaration of Human Rights, and their protection and administration in practice through the nation-state apparatus (DeGooyer et al. 2018; Azar 2019; Sari 2021). What followed from this for Arendt (as cited in Menke 2007: 748) was that such human rights "could only be enjoyed as the rights of citizens", allowing them to "change according to historical and other circumstances" (DeGooyer et al. 2018: 8). A major implication of Arendt's reasoning about rights, which this paper will draw on, is that most rights we consider to be universal human rights, including the RtH, are de-facto only "legally recognised entitlements of citizens" without any logically necessary interpretation and formulation (DeGooyer et al. 2018: 26).

4. Lamm's Argument Against the RtH

Lamm's (1998) argument against the RtH begins with the premise that priority-setting is necessary in the world of public health due to the constraints imposed by fixed government budgets. More specifically, Lamm's (1998: 3) utilitarian approach that healthcare policy needs to "buy the most health for the most people" necessitates that priority-setting must spend each dollar in the most cost-effective way. This, according to Lamm (1998: 2), rules out placing healthcare on a rights footing, as doing so is inconsistent with the "world of choices, priorities and trade-offs" for two reasons - first, rights are absolute claims incompatible with trade-offs, and second, rights discourse leaves decision-making to courts, which are ineffective at trading-off social needs.

5. Are Rights Incompatible with Priority-Setting?

Lamm's (1998) first argument against the RtH, invoking an absolute interpretation of rights, posits that rights are incompatible with priority-setting, as they act as trump cards against all other possible government priorities and hence prevent one from making policy decisions from a perspective considering wider social welfare. Ultimately, rights for Lamm (1998: 2) are absolute, "individual and adversarial" claims "that society must protect at all costs", whilst "policy has to balance both who is covered and what is covered for all citizens". Through this argument, Lamm (1998) sweeps away the rights foundation for most public policy and social good provision which requires using limited resources and engaging in trade-offs - e.g., education, housing and food. Furthermore, Lamm (1998) also contends that the theoretical contradiction between absolute rights and priority-setting translates into unequal healthcare outcomes in practice. More specifically, the RtH is accused of crowding out cost-effective treatments with wide health benefits for cost-ineffective treatment benefitting only a select few (Lamm 1998). Ferraz (2011) documents empirical support for this claim in Brazil, where, since the RtH was included in the constitution in 1988, a large volume of lawsuits, brought mostly by the middle classes, have conflicted with the prioritisation plans of the country's health officials. For instance, in the municipality of São Paulo, Chieffi and Barata (as cited in Ferraz, 2011: 91-92) find that 74% of RtH-related lawsuits are brought by individuals residing in the three districts with the lowest social vulnerability rates.

In response, drawing on the consequence of the Arendtian framework that rights do not have a single logically necessary interpretation, this paper argues that Lamm's (1998) concern that the RtH is inherently incompatible with priority-setting stems directly from his absolute conceptualisation of rights and is not inherent to the RtH qua right. Indeed, Lamm's (1998) absolutist understanding of the RtH, in line with a prima facie reading of the definition contained in "The International Covenant on Economic, Social and Cultural Rights" whereby the RtH gives an individual unbounded access to any medical treatment, would be considered by many philosophers as unconventional. As flagged by Wenar (2021), philosophers such as Dworkin (1984) disagree that any right has the necessary absoluteness to trump all other rights in all contexts, instead holding that, although rights do carry some unique normative appeal to trump non-rights considerations (e.g. reducing unemployment), they can and frequently have to be traded off against each other. For instance, in the world of fixed state-level budgets, US State governments must trade off the extent to which they fulfil different rights. The fact that for the fiscal year 2023, New York is set to spend a relatively higher share of its state budget on education/culture than Florida (38% v 25%) and comparatively less on policing/criminal justice (4% v 6%), suggests that different states trade off the right to education with the right to protection in alternate ways (New York State 2022; Florida Association of Counties 2022).

Indeed, the Arendtian rights framework allows for alternative definitions of the RtH that directly incorporate priority-setting and practical budget constraints. One such definition is provided by Rumbold et al. (as cited in Voorhoeve 2021: 15), who specify the RtH as the "right to an adequately resourced health system, in which priorities are set fairly and accountably". Compared to Lamm's (1998) individualist conception of rights, these scholars consider the RtH from a societal perspective via a community sharing a healthcare system (Rumbold et al. 2017). Further work subsequently has to be done in Rumbold et al.'s (2017) proposal to precisely lay out what substantive and procedural priority-setting criteria render priority-setting fair and accountable. Nonetheless, in line with the Arendtian analysis suggesting that rights do not have logically necessary formulations, Rumbold et al.'s (2017) work shows that there exist alternative definitions of the RtH that internalise priority-setting, and thus that Lamm's (1998) compatibility concerns are not prompted by the status of the RtH as a right.

6. Does the RtH Leave Priority-Setting to Ineffective Courts?

Lamm's (1998) second argument against the RtH is that, as "rights are defined and interpreted by the judicial system", rights-based discourse in the realm of healthcare will necessarily leave decisions on healthcare provision to courts, which he claims are "too blunt an instrument to weigh and balance... social needs" (Lamm 1998: 2). Ferraz (2011), Wang (2013) and Wang et al. (2020) posit several reasons for the inefficiency of courts in healthcare priority-setting, including a limited capacity to assess medical evidence, to understand the cost implications of treatments and, perhaps most importantly, to fully comprehend the system-wide implications of granting individual claims. Therefore, Lamm (1998: 2) advocates that we need to discard the rights framework for healthcare in order to "expand the moral vision of the legislative process" and enable the elected branches rather than courts to make healthcare decisions.

Although this paper concedes that Lamm (1998) may be correct in his concern about the limited capability of courts in healthcare contexts, by drawing on the Arendtian understanding of rights as "legally recognised entitlements" rooted in political community membership, it disputes Lamm's implicit premise that only courts can make decisions on such rights (DeGooyer et al. 2018: 26; Sari 2021). Indeed, Lamm's former claim is grounded in convincing empirical data; for instance, Norheim and Wilson (2014), by studying the medical claims granted by the Costa Rican Supreme Court in 2008, find that 21.6% of claims granted were for ineffective treatments, and 48.6% for low priority treatments. Nonetheless, the Arendtian reading of rights as political and as administered through the nation-state apparatus leaves open the possibility for state bodies other than courts to define and adjudicate between different rights when they come into conflict (Sari 2021). One such alternative institutional arrangement for dealing with the RtH is Voorhoeve et al.'s (2016: 18-19) "priority setting by a dedicated institution", where an independent body is set up by a transparent, accountable process and subsequently engages in these rights trade-offs via an "explicit priority-setting mechanism" rooted in "reasonable, non-discriminatory" principles. Courts are subsequently left to check whether the explicit priority-setting mechanism is followed and whether the health benefits are dispersed to those that can lay claims on them according to the mechanism (Voorhoeve et al. 2016). This arrangement alleviates Lamm's (1998) concerns, both as courts now need not get their hands dirty by making trade-offs but rather must simply judge procedural matters, and as priority-setting committees, utilising necessary expertise and a wider "population level" viewpoint, can make fairer and more cost-effective healthcare decisions (Voorhoeve et al. 2016: 19).

7. Conclusion

In conclusion, this paper has, drawing on an Arendtian conception of rights, argued that Lamm's (1998) concerns around providing healthcare within a rights framework are not inherent to the RtH qua right, but are the direct product of an absolute interpretation of the RtH, which moreover is assumed to be evaluated and implemented solely by courts. In its place, this paper has presented potential alternatives in the form of Rumbold et al.'s (2017) definition of the RtH that explicitly includes the need for (fair) trade-offs and Voorhoeve et al.'s (2016) alternative institutional arrangement which allocates priority-setting to an independent institution, with courts solely judging procedural matters. Nonetheless, it is important to emphasise that this paper has not made a positive case for any particular notion of the RtH, but instead has, based on an Arendtian rights framework, argued that Lamm's (1998) worries around the RtH do not arise from its status as a right.

Acknowledgements

I would like to thank Professor Alex Voorhoeve and three anonymous PPE student editors for their invaluable guidance and constructive feedback.

References

Arendt, H. 1951. The Origins of Totalitarianism. Milton Keynes: Penguin Random House UK.

Azar, L.F. 2019. Hannah Arendt: The right to have rights, URL: https://criticallegalthinking.com/2019/07/12/hannah-arendt-right-to-have-rights/

DeGooyer, S., A. Hunt, L. Maxwell and S. Moyn. 2018. The Right to Have A Right. London: Verso.

Dworkin, R. 1984. Rights as Trumps. In Theories of Rights, ed. J. Waldron, 153--168. Oxford: Oxford University Press.

Ferraz, O. 2011. Health inequalities, rights, and courts: The Social Impact of the Judicialization of Health. In Litigating Health Rights: Can Courts Bring More Justice to Health?, ed. S. Gloppen and A. Yamin, 76--102. Cambridge: Human Rights Program, Harvard Law School.

Florida Association of Counties. 2022. 2022-2023 house and senate budget proposal analysis, URL: https://www.fl-counties.com/2022-2023-house-and-senate-budget-proposal-analysis#:~:text=The%20Florida%20Legislature%20is%20constitutionally,billion%20and%20%24108.6%20billion%20respectively

Lamm, R.D. 1998. The case against making healthcare a "right".vHuman Rights 25: 8--11. URL: https://www.proquest.com/trade-journals/case-against-making-healthcare-right/docview/214021898/se-2?accountid=9630

Menke, C. 2007. The "aporias of human rights" and the "one human right": regarding the coherence of Hannah Arendt's argument. Social Research 74: 739--762.

New York State. 2022. Open budget, URL: https://openbudget.ny.gov/overview.html

Norheim, O.F. and B.M. Wilson. 2014. Health rights litigation and access to medicines: priority classification of successful cases from Costa Rica's constitutional chamber of the Supreme Court. Health and Human Rights 16: 47--61.

OHCHR. 1966. International Covenant on Economic, Social and Cultural Rights, URL: https://www.ohchr.org/sites/default/files/cescr.pdf

Phillips, R. 2014. South Africa's right to health care: international and constitutional duties in relation to HIV/Aids Epidemic. Human Rights Brief 11: 9--12.

Rumbold, B. et al. 2017. Universal health coverage, priority setting, and the human right to health. Lancet 390: 712--714.

Sari, Y. 2021. Chapter 36: The right to have rights. In The Bloomsbury Companion to Arendt, ed. P. Gratton and Y. Sari, 357--365. London: Bloomsbury Academic.

Voorhoeve, A. et al. 2016. Three case studies in making fair choices on the path to universal health coverage. Health and Human Rights 18: 11--22.

Voorhoeve, A. 2021. Priority Setting and the Right to Health: Enemies or Allies? [PowerPoint Slides], URL: https://moodle.lse.ac.uk/pluginfile.php/1624090/mod_resource/content/5/Priority%20Setting%20and%20the%20Right%20to%20Health%2021-22.pdf

Wang, D. 2013. Courts and healthcare rationing: the case of the Brazilian Federal Supreme Court. Health Economics, Policy and Law 8: 75--93.

Wang, D. et al. 2020. Health technology assessment and judicial deference to priority-setting decisions in healthcare: quasi-experimental analysis of right-to-health litigation in Brazil. Social Science & Medicine 265.

Wenar, L. 2021. Rights. Stanford Encyclopaedia of Philosophy (Spring 2021 Edition), E.N. Zalta (ed.), URL: https://plato.stanford.edu/entries/rights/

World Health Organisation. 1946. Constitution of the World Health Organisation, URL: https://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf?ua=1