Only a Right to Health

By Nathaniel Counts

Human rights disaggregates otherwise related issues into separate rights.  We discuss rights to health, education, housing, association, etc., and, in countries where these rights are codified, we litigate each one separately in the courts.  We also know that each of these issues for which there is a corresponding right is, to some extent, a symptom of poverty.  In some cases it might not be possible to treat the symptoms without addressing the root cause.  For example, in 1966, the Coleman study on equality in education found that “[s]chools bring little influence to bear on a child’s achievement that is independent of his [or her] background and general social context.”  These findings have been contested, but it is likely that socioeconomic factors are a determinant of a child’s academic success, along with the educational experience itself.  If the socioeconomic background is the greater determinant, it may not make sense to use scarce government resources to fund school improvement rather than addressing poverty itself.  In a country with a right to education, school improvement could be litigated and potentially derail national efforts to address root causes.

A right to be free from poverty would not be the best solution.  This right would only be a floor – the government would only have the duty to assist its citizens to the extent that they have such limited resources that they cannot pursue basic life activities.  Instead, the relevant right should impose a duty on the government to help its citizens flourish.  I propose that the WHO’s right to “the highest attainable standard of health,” using their definition of health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity,” would be ideal as a country’s principle right.

A sole positive right to health would incorporate all of the issues that human rights has disaggregated, such as education, housing, association, etc., as all are determinants of health.  In contrast to the right to be free from poverty, the right to health has limitless potential for growth over time.  This growth would also be highly responsive to research – as new studies come out that bring promise of greater wellness or that demonstrate the inefficacy of an old approach, the government would have a duty to incorporate these finds into its programs.  The sole right also helps alleviate the problem cited above, where litigation can defeat central resource rationalization programs.  Issues of education and housing would be contextualized into the larger goal of health promotion and the government could not be compelled to spend more in any given area if it would affect spending elsewhere and negatively impact the health of its citizens, i.e. the government would have to attempt to achieve optimal resource allocation to promote health.  Health as the principle metric would also help in measuring the success of other policies.  For example, if education improves health, education programs could be effectively evaluated by their contribution to wellbeing, rather than relying on a potentially superficial metric like test scores.  The right to health would need to be checked by a right to due process and a right to equal treatment, participation, and enjoyment of benefits, to ensure that research-justified public health initiatives never work an injustice when boosting the life expectancy of some.

Since every aspect of an individual’s social, economic, and political life are interwoven with health, the citizens would enjoy a government that would endeavor to help them wherever they need it most, in an efficient and research-driven manner.



Nathaniel Counts was a Student Fellow during the 2013-2014 academic year. At the time, he was in his third year at Harvard Law School. He was interested in the role of law and lawyers in the treatment of mental health issues, with a focus on behavioral disorders, including intersections with the criminal justice system. He was also interested in the use of a right to health care in human rights lawyering and international development. Nathaniel graduated from Johns Hopkins with a major in biology and a minor in entrepreneurship and management. Prior to law school, he studied creative writing at Bar-Ilan University in Israel. His past research focused on the federal government’s response to marijuana legalization, including recommendations for public health initiatives; he published an article on this subject in the Gonzaga Law Review in 2014.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.