Do we have a legal and moral right to health care against others? There are international
conventions and institutions that say emphatically yes, and they summarize this in the expression of “the right to health,” which is an established part of the international human rights canon. The International Covenant on Social and Economic Rights outlines this
as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,” but declarations such as this remain tragically unfulfilled.
According to recent figures, roughly two billion people lack access to essential drugs or to primary health care. Millions are afflicted by infections and illnesses that are easily avoidable or treatable. In the developing world many children die or grow stunted and damaged for
lack of available treatments. Tropical diseases receive little or no attention by the major pharmaceutical companies’ research departments. Is this a massive violation
of the right to health? And if so, why does it attract so little attention? Is it because our supposed commitment to human rights and the rule of law is hypocritical and hollow? Or is it because the right to health is a special case of a right, so that these tragedies are no violation at all? Jennifer Prah Ruger summarized this puzzle when she wrote: “one would be hard pressed to find a more controversial or nebulous human right than the right to health.”1 In this essay I discuss three different theories of a right to health care. I conclude by offering
my own reconstruction of one such theory. ....
If we abandon the instrumental theories and endorse what I called a justice-based view concentrating on public dimensions of coercion, deception, and inequality of status, then we can see that there are basic rights that concern health and health care. Fixing their precise content requires, of course, judgment and sensitivity to the social and cultural context of
each particular place, but it does not require balancing. To avoid being puzzled by the right to health we must keep basic rights and distributive justice clearly distinct.
P Eleftheriadis, 'A Right to Health Care' (2012) 40 Journal of Law, Medicine and Ethics 268