Health Care as a Human Right: The Problem of Indeterminate Content

Two essays collected in Allen Buchanan’s Justice and Health Care are illustrative of his longstanding, wider engagement with one of the most challenging issues in the philosophical accounts of rights. A central issue in both essays is the familiar concern that if a determinate account of the ‘content’ of a right—what Joel Feinberg calls the right-holder’s ‘claim to’—cannot be provided, then the very idea of a right as a justifiably enforceable claim owed to a claimant is in doubt.1 In his 1984 essay, ‘Health Care and the Right to a Decent Minimum’, Buchanan addresses the objection as it pertains to debates about rights to health care. He observes that prominent defences of health care as a right suffer from ‘an embarrassing theoretical lacuna’, namely ‘the lack of a principled specification of a decent minimum’ (36). His argument proceeds in two phases. The critical argument challenges Norman Daniels’s reliance upon a variant of John Rawls’s principle of Fair Equality of Opportunity as the singular rationale justifying a right to health care. The particulars of his argument are well known, and they remain among the most trenchant criticisms of Daniels’s influential views. But the key conclusion Buchanan defends is that Daniels’s rationale cannot provide an adequate solution to the problem of the indeterminate specification of a right to health care. The contribution of the specific health care services needed to preserve a person’s ‘normal opportunity range’, and thus a requisite degree of opportunity, is not the only reason or even the most important reason to value access to medical care (24). Buchanan’s positive argument is meant to bypass the seemingly unresolvable conceptual issues inherent in a rights-based approach. While the distinguishing mark of a right is that its correlative duties always provide pro tanto reasons for state enforcement, duties based in beneficence do not entail the contrary proposition that they never supply sufficient moral warrant for enforcement. Buchanan then argues that instead of searching for a single rationale that can specify a determinate