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Posted on April 22, 2020 at 1:53 PM

by Craig Klugman, Ph.D.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Ventilators.

In the last few months, the public airwaves, social media, and the internet have been buzzing about having enough ventilators to support COVID-19 patients. Bioethicists and physicians have worked alongside administrators and elected officials to craft hospital and regional allocation policies in case there are not enough ventilators going around. These plans have been criticized for being ageist, ableist, and unfair. Innovators have tried to connect 4 patients to a machine made to support one.  But the reality is that there is no human right to ventilators and certainly not in a country the views medical care as a commodity and not as a basic human right.

The United States is unique among high income countries in that we have never ratified the Universal Declaration of Human Rights, which, in article 25, guarantees a right to medical care.  According to the American Bar Association, “In the United States, we cannot enjoy the right to health care.”

It could easily have been a right in the U.S. In a 1944 speech, President Roosevelt proposed an Economic Bill of Rights, often called “The Second Bill of Rights”. Roosevelt stated his call as, “The right to adequate medical care and the opportunity to achieve and enjoy good health”. But this never went anywhere.

When we speak in terms of rights, the United Nations defines them as “Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”. In the U.S. Declaration of Independence, Thomas Jefferson and the Continental Congress wrote “endowed by their Creator with certain inalienable rights”, thus appealing to the notion of God-given moral and legal entitlements. In the U.S., these include life, liberty, and the pursuit of happiness (usually interpreted as the right to make money).

There are two branches of rights—positive rights and negative rights. Positive rights are those that someone must provide for you. For example, the federal and state governments are required to provide K-12 education for every child in the U.S. A negative right is a privilege that a government cannot abrogate. In the U.S., the government cannot restrict your right to free speech (within reason), and cannot establish (or show preference for) a particular religion. These are negative rights because no one has to give you a soapbox or a pulpit, but no one can stop you from speaking (within certain limitations). Medical care would be a positive right—the government would have to provide it either through making funds available or by making health care providers and hospitals available. The only group in the U.S. that has a positive right to health care are prisoners (U.S.S.C. Estelle v. Gamble) and Native communities (U.S. Constitution, Article I, Section 8; U.S. Commission on Civil Rights 2004).

What about Medicare and Medicaid? These systems were created under President Johnson in 1965 to provide medical care to people over age 65 and to people with very low incomes, disabilities, and orphans. While these programs do exist, they are not rights in the moral or legal sense (technically not entitlements), but rather programs that the government offers because it chooses to do so.

People who are arguing that we should have more ventilators to meet everyone’s needs, and that we need fair systems that allow everyone to have a chance to access a ventilator are forgetting one fundamental truth, there is no right to a ventilator. Perhaps they think that there is an implied right under the “life” section of the Declaration of Independence. If we do not have a right to medical care, though, then this can’t interpreted to mean a right to a ventilator. In the U.S. we do not have a health care system, we offer a marketplace of medicine and you can purchase what you need (or have insurance that purchases for you). In a market, you can only buy what is available and if there are no ventilators then there is nothing to buy.

All of the triage and allocation systems that have been created follow the same assumption—that everyone should have access to a ventilator if they need it and one is available. But this is not an assumption that is supported by tradition in the U.S. Certainly, our elected officials could choose to make medical care a human right. They could choose to build an actual health care system that provides access to care, payment, and coordinated responses to meeting the health needs of the population. In such a system, one might have a claim to life saving technology, but in the U.S., there is no such right to claim. At least, not yet.

In addition, to the lack of a basis for claiming that “I deserve a ventilator”, the reality is that COVID patients on ventilators do not fare so well. The survival rates are fair low—20-30% depending on the study. Even though some COVID patients have incredibly low blood oxygen levels, they show few physiological symptoms of it. Ventilators may be too aggressive or too damaging to the lungs of some COVID patients. Thus, physicians are trying laying patients on their stomachs and using other oxygen support systems like CPAPs. The data is not in on such approaches.

The way people speak of ventilators sounds like they are the golden ticket to continued plentiful and fulfilling life and without them, certain death. The reality, however, is far different and while we experiment, procure, and ration, we should also remember that no one has a right to these machines. But perhaps, we should.

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