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February 10, 2012 | Posted By David Lemberg, M.S., D.C.

What does it mean to live in a democracy? In the United States, various freedoms are enumerated in the Bill of Rights. These precious freedoms include freedom of speech, freedom of religion, and freedom of assembly. The Fourth Amendment provides protection against unreasonable search and seizure. The Ninth Amendment states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Over the years, the rights "retained by the people" have expanded in many directions. These putative rights have been contested by Congress, state legislatures, and the courts. As examples of such rights, in Washington v. Glucksberg1. Chief Justice William Rehnquist enumerated many that have been ruled to be protected by the Due Process Clause, including marital privacy, the use of contraception, bodily integrity, and abortion.

Section 1 of the 14th Amendment describes "Due Process": "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

What exactly is included in the "liberty interests" guaranteed by the 14th Amendment? In Palko v. Connecticut,2 Justice John Marshall Harlan described basic values that are "implicit in the concept of ordered liberty". But rights cannot be expanded so broadly that any personal activity or preference becomes a "right". When considering new rights potentially contained within the liberty interests guaranteed by the Due Process Clause, Justice Rehnquist stated "we must exercise the utmost care whenever we are asked to break new ground in this field".

A critical question is whether the "liberty" protected by the Due Process Clause includes the right to health care. Professor William T. Blackstone suggests that the Due Process Clause could arguably be read "as requiring that a state has the duty to protect all citizens against fundamental threats to life".3

But rights are tricky things. Rights may be construed as negative rights and positive rights. A negative right is a right against interference, e.g., a right against interference by the state. The holder of a positive right is entitled to the provision of some good or service. The putative right to health care could conceivably contain elements of both positive and negative rights, or neither.

Ultimately, the right to health care may not be resolvable as a constitutional issue, i.e., as a right guaranteed by America's founding documents. Paul Freund suggests that the equal protection clause of the Fourteenth Amendment "is a moral standard put in the wrappings of a legal command".4 If our collective moral standards evolve, a right to health care could be enacted by Congress into law. But the current state of congressional morals suggests that such an enlightened policy may be long in coming.

1Washington v. Glucksberg (521 U.S. 702, 1997)

2Palko v. Connecticut (302 U.S. 319, 1937)

3Blackstone WT: On health care as a legal right. An exploration of legal and moral grounds. Georgia Law Rev 10(2):391:418, 1976

4Freund P: On Law and Justice. Boston, Belknap Press, 1968, p 35

The Alden March Bioethics Institute offers graduate online masters in bioethics programs. For more information on the AMBI master of bioethics online program, please visit the AMBI site.

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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.
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