A disenfranchising effect of the right to health?

By Julian Urrutia

Human rights embody the humanist egalitarian principle that all human beings are morally important, and that they are morally important simply because of their humanity. Princes and paupers, bankers and bums, women and men . . . we’re all subjects of human rights that are not contingent on anything other than our humanity.

There is widespread agreement that the rise of humanism is one of the most important milestones in the history of moral progress. However, it also clear that the rise of humanism did not, by itself, bring us all the way down the path of progress to where we are today: throughout colonial history, for example, humanism failed to deliver us from outrageous discrimination when the boundaries of humanity were delineated too narrowly.

Humanists are just as prone to inhumane conduct when they fail to recognize other’s humanity. When we determine what is human (and must therefore be treated with respect), we tacitly also determine what is un-human (and can therefore be exploited). As Carl Schmitt put it “Given the coherence of this two-sided aspect of humanity, it should be remembered that Bacon opposed the axiom homo homini deus to that of homo homini lupus.” (The nomos of the earth, 1950)

That’s why contemporary, liberal constitutions that recognize human rights are so great. All people are recognized as being equally human, and therefore equally subjects of human rights. This is certainly a form of moral progress. However, narrow human rights-based approaches to politics, legislation and policy-making can have similarly perverse consequences as narrow forms of humanism. Instead of delivering us from outrageous discrimination, marginalization and exploitation, a narrow focus on rights might confine us to them. For example, there is growing evidence that human-rights-based legislation and litigation often fails to achieve an effective enjoyment of the right to health to among those who need it most. Even more troubling is the possibility that, sometimes, rights-based approaches not only have little positive effects, but might in fact lead to further marginalization and disenfranchising of the poor.

In my previous post, I commented about how every year hundreds of thousands of Colombians take to the courts to litigate for healthcare that has already been explicitly recognized as being covered by the right to health. It is a troubling phenomenon because it illustrates how shortcomings in the implementation of right-to-health legislation prevents the effective enjoyment of rights that have already been recognized.

But there is an even more troubling dimension to the phenomenon. In the vast majority of these right-to-health cases, the plaintiffs are individuals in the upper segments of the socioeconomic (SES) distribution (Yamin & Gloppen, Litigating Health Rights, 2011)–even though the majority of the burden of disease is borne by those in the lower segments of the distribution (and it’s a highly skewed distribution: most Colombians fall in its lower ends.) In effect, individuals who comprise the large bottom end of the Colombian endowment of humanity cannot access either hospitals, clinics or courtrooms when they’re ill. They must remain sick and disenfranchised–they are the subjects of rights that they cannot enjoy.

The debate in Colombia has focused almost exclusively on whether and which services are covered by the right to health. Little attention is being paid to who and how many are effectively enjoying the coverage. In fact, politicians, policymakers, and the public (including both human rights activists and special interests groups) are often hostile towards efforts to shift focus onto governance mechanisms and structural reforms. The reasons behind the hostility of some groups are obvious. Regarding the other groups, perhaps some are hostile because they’ve fought hard to protect the right to health, and are now reluctant to cede ground or break ranks. But whatever the reason, most of the energy is spent on efforts to elevate the legal status of right to health, to the exclusion of efforts to protect its effective enjoyment among the poor.

So although the boundaries of the right to health are being delineated expansively, this may simultaneously be causing the boundaries of admissible discourse to be delineated very narrowly. So narrowly, in fact, that the focus on the boundaries of the right to health might itself have become a boundary of exclusion and marginalization of the poor.

My claim–as a humanist and an advocate of human rights–is that we health-rights advocates are prone to inhumane conduct when we fail to recognize that we must focus equally on the question of what the right to health should entail as on the question of what it actually  does entail.

We may view the fact that health is now recognized as justiciable human right as an important moral victory. But I wonder how much we can consider it actual moral progress until we have finished traveling down the path from having recognized this right to actually guaranteeing its effective universal enjoyment. Though we may believe strongly in the ideals of humanism and human rights, we must remain objective in our evaluations of their results. What good is humanism if we fail to recognize the humanity in others? What good are rights if they cannot be enjoyed? Might we be gloating over what so far has only been a Pyrrhic victory?

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