A Property Right to Medical Care

Click to increase image sizeClick to decrease image size Notes ∗ Associate Professor, Division of General Internal Medicine and Director of the General Internal Medicine Medical Humanities Program at the University of Colorado Health Sciences Center. Dr. Earnest holds a Ph.D. in Health and Behavioral Sciences (an interdisciplinary degree combining public health and medical anthropology and sociology) and is Director of CULeads, a physicians' advocacy training program. † Professor and Associate Dean for Academic Affairs, University of Colorado School of Law. 1 See, e.g., Kenneth R. Wing, The Right to Health Care in the United States, 2 Annals Health L. 161, 163 (1993) (stating the United States recognizes no constitutional right to health care); see also Wendy E. Parmet, Terri and Katrina: A Population-Based Perspective on the Constitutional Right to Reject Treatment, 15 Temp. Pol. & Civ. Rts. L. Rev. 395, 403 (2006). 2 See, e.g., Kristen Hessler & Allen Buchanan, Specifying the Content of the Human Right to Health Care, in Medicine and Social Justice: Essays on the Distribution of Health Care 84 (Rosamond Rhodes et al. eds., 2002); see also John C. Moskop, Rawlsian Justice and a Human Right to Health Care, 8 J. Med. & Phil. 329 (1983). 3 See generally Richard A. Epstein, Mortal Peril: Our Inalienable Right to Health Care (1997) (making the economic argument that an individual right to health care would fail). 4 See generally Mark A. Ison, Note, Two Wrongs Don't Make a Right: Medicaid, Section 1983 and the Cost of an Enforceable Right to Health Care, 56 Vand. L. Rev. 1497 (2003). 5 See, e.g., Lori Andrews, My Body, My Property, Hastings Cen. Rep., Oct. 1986, at 28 (arguing for recognition of property rights in organs, body parts, and tissue in connection with transplantation forms of health care, but falling far short of the overall property rights argument presented in this article); see also Thomas J. Bole, III, Rights to Health Care 28 (1991) (providing a sample of arguments, including one that posits recognizing a right to health care will limit the property rights of others). 6 See Meredith Rosenthal & Norman Daniels, Beyond Competition: The Normative Implications of Consumer Driven Health Care, 31 J. Health Pol. Pol'y & L. 671, 677 (2006) (arguing a right to health care requires fair financing and distribution). 7 See, e.g., Eleanor D. Kinney, The International Human Right to Health: What Does This Mean for Our Nation and World?, 34 Ind. L. Rev. 1457 (2001); see also The Universal Declaration of Human Rights, G.A. Res. 217, art. 25, U.N. Doc. A/810 (Dec. 10, 1948) (declaring health care a human right). 8 E.A. Pont, The Culture of Physician Autonomy: 1900 to Present, 9 Cambridge Q. Healthcare Eth. 98 (2000). 9 R.S. Epstein, Keeping Boundaries: Maintaining Safety and Integrity in the Psychotherapeutic Process 129 (1994). 10 Robert Sade, Medical Care as a Right: A Refutation, 285 New Eng. J. Med. 1288 (1971). 11 Lior Zemer, The Making of a New Copyright Lockean, 29 Harv. J. L. & Pub. Pol'y 891, 907-10 (2006). The famous and influential Lockean labor theory of property derives from John Locke's Second Treatise of Government, in which the philosopher argues: Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but him. The Labour of his Body and the Work of his Hands, we may say, are properly his. Whatsoever, then, he removes from out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men. For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others. See also Adam Mossoff, Locke's Labor Lost, 9 U. Chicago L. School Roundtable 155 (2002) (explaining the breadth of Locke's labor theory of property in modern property law). 12 For example, the Eighth Amendment to the United States Constitution guarantees prisoners a right to adequate medical care. See Estelle v. Gamble, 429 U.S. 97 (1976); see also Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §S 1395dd (2003 (entitling all in an emergency medical condition to appropriate medical screening in a hospital emergency department). 13 See Estelle, 429 U.S. at 97. 14 Emergency Treatment and Active Labor Act, 42 U.S.C. § 1395(dd) (West 2003). 15 Id. 16 Social Security Act of 1965, Pub. L. No. 89-384, codified at 42 U.S.C. § 1395 et seq. and 1396 et seq. (West 2003). 17 42 U.S.C. § 1395 et seq. 18 Social Security Act of 1965, Pub. L. No. 110-27, codified at 42 U.S.C. § 426 (West 2007). 19 Social Security Act of 1965, 42 U.S.C. § 1396 et seq. (2003). 20 Hospital Survey and Construction Act (Hill-Burton Act), 42 U.S.C. § 291 (West 2001); see also CMS Manual System, Pub. 100-1, ch. 1/20.2. 21 447 S.W.2d 558 (Mo. 1969). 22 323 F.2d 959 (4th Cir. 1963). 23 Paul Starr, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry 112-13 (1982). 24 R.F. Jones & David Korn, On the Cost of Educating a Medical Student, 72 Acad. Med. 200 (1997). 25 Lynn Blewett et al., Measuring the Direct Costs of Graduate Medical Education Training in Minnesota, 76 Acad. Med. 446, 449 (2001); see, e.g., James R. Boex, Factors Contributing to the Variability of Direct Costs for Graduate Medical Education in Teaching Hospitals, 67 Acad. Med. 80 (1992); Council on Graduate Medical Education, First Report of the Council: Prospective Payment Assessment Commission, Physician Payment Review Commission (1988). 26 American Association of Medical Colleges, Revenues Supporting Programs and Activities at All US Medical Schools, 2000-2001 Fiscal Year, in AAMC Data Book, available at http://www.aamc.org/data/finance/2001tables/finance__table1.pdf (last accessed June 25, 2007). 27 Tim M. Henderson, Medicaid Direct and Indirect Graduate Medical Education Payments: A Survey of the States 6 (2003). 28 Council on Graduate Medical Education, State and Managed Care Support for Graduate Medical Education: Innovations and Implications for State Policy 7 (United States Department of Health and Human Services 2004), available at http://www.cogme.gov/ManagedCare/ManagedCareReport.pdf (last accessed June 25, 2007). 29 David J. Rothman, Beginnings Count—The Technological Imperative in Health Care 18-29 (1997). 30 Steffi Woolhandler & David U. Himmelstein, Paying for National Health Insurance—And Not Getting It, 21 Health Aff. 88, 92 (2002). 31 Kenneth M. Ludmerer, Time to Heal: American Medical Education from the Turn of the Century 30-39 (1999). 32 Association of Technology Managers, AUTM Licensing Survey, FY 1999: A Survey Summary of Technology Licensing (and Related) Performance for U.S. and Canadian Academic and Nonprofit Institutions and Patent Management Firms 9 (2000). 33 H. Moses, Financial Anatomy of Biomedical Research, 294 J.A.M.A. 1333, 1333 (2005). 34 Darren Zinner, Medical R & D at the Turn of the Millennium, 20 Health Aff. 202, 204 (2001). 35 Hospital Survey and Construction Act (Hill-Burton Act), codified at 42 U.S.C. § 291 (West 2001). 36 Starr, supra note 23, at 348-51. 37 Tax Exempt Status: Hearing Before the House Committee on Ways and Means, 109th Cong. (2005) (statement of the American Hospital Association). 38 45 Ala. 696 (Ala. 1871). 39 Id. at 700; see also Pikes Peak Power Co. v. City of Colorado Springs, 105 F. 1, 44 C.C.A. 333 (8th Cir. 1900) (holding waterworks system to produce electrical power is a public good). 40 See Jaffe v. Redmond, 518 U.S. 1, 2 (1996) (equating the importance of mental health with the public good of physical health). 41 See, e.g., Nonprofit Hospital Sale Act, Neb. Stat. § 71-20, 102 (2006); Az. Rev. Stat. § 48-1907 (2006). 42 M.R. Fremont-Smith, The Challenge of For-Profit Healthcare Conversions, 31 J. L. Med. & Eth. 49 (2003). 43 Colo. Rev. Stat. §§ 6-19 & 401-407 (2002). 44 See Banner Health Sys. v. Stenehjem, 2003 WL 501821 (D.N.D. 2003). 45 Brad Chandler, State Law and Public Health, 90 Kent. L. J. 815, 816 (2002). 46 Teresa Gillen, A Proposed Model of the Sovereign/Proprietary Distinction, 133 U. Pa. L. Rev. 661, 663-64 (1985). 47 See Thomas Jefferson, The Writings of Thomas Jefferson 316 (Richard Holland Johnston ed., 1904). 48 42 U.S.C. § 1395(dd). 49 Kenneth J. Vandevelde, Investment Liberalization and Economic Development, 36 Colum. J. Transnat'l L. 501, 504-06 (1998). 50 S.D. Cashin, Federalism, Welfare Reform and the Minority Poor, 99 Colum. L. Rev. 584, 587 (1999).

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