Is there a “Right to Health?” For many countries in the world, including Latin American countries like Brazil, the answer is easily in the affirmative. Similarly, in the hit HBO show Westworld, the “hosts” (androids on the verge of discovering consciousness) also possess a right to health. How so? Despite atrocious cruelty the human “guests” constantly inflict upon them, the company that runs Westworld maintains a highly extensive, functional “universal health care system” that employs the latest medical technologies for androids to take care of any health problems of all damaged hosts. The efficiency of the system is breathtaking: a cowboy host with 20 bullet wounds and a broken arm could be fully restored overnight; when the sun rises the next morning, the host returns to the simulated reality as if nothing happened.
Of course, the right to health in Westworld is not a result of democratic deliberations or judicial activism that invokes the UDHR or related treaty obligations. Instead, it originates in the sheer necessity of running a seamless alternate reality that requires good maintenance of the hosts, whom the Board depend on to please the guests and maximize the company’s profits. In other words, the physical wellbeing of the hosts is intrinsically tied to the functioning of the entire Westworld machinery and its profitability. Fixing them quickly and adequately allows them to return to their respective, pre-determined roles in a complex narrative with countless plots and subplot twists meticulously designed by their human masters.
In contrast, few Americans today enjoy a recognized right to health. No matter how many times Bernie Sanders attempted to interject his “health care is a right, not a privilege” slogan in the midst of failed Republican efforts to repeal and replace the ACA, the U.S. health care system is still dominated and controlled by impersonal market forces that leave no space for an explicitly “rights-based” health care consciousness to take shape. As Alicia Yamin pointed out in the HLS Health Law Workshop on October 2, many countries in the rest of the world have incorporated a rights framework for health care in constitutions and judicial systems, and litigation based on the right to health has soared since that great shift took place. Meanwhile, it is difficult to even imagine a similar shift in political and legal consciousness in the United States in the foreseeable future.
Interestingly, however, American prison inmates are among a select few who legally possess a right to health. Invoking the 8th Amendment against cruel and unusual punishment, the Supreme Court decided that prisoners have a right to health care in Estelle v. Gamble (1976) and Brown v. Plata (2011). I will not be discussing the precise legal reasoning behind the decisions here, but I find the parallels between inmates in U.S. prisons and hosts in Westworld striking. The hosts are essentially prisoners trapped in a heavily guarded world with good health care. Like the hosts, American inmates are under strict bodily disciplines of the prison system with negligible voice, power, or freedom. Their daily routines are tools of control with which bodies and minds are severely disciplined and manipulated. To enable and sustain this system of control, the inmates must be physically and mentally capable of carrying out their disciplined, pre-determined duties through countless iterations. Their compliance and bodily well-being is necessary for the prison machinery to function properly as well as their prison sentences to be carried out in full.
The major takeaway from both the American inmate and Westworld android examples is that an individual’s right to health could be theoretically tied to the operations and sustainability of a given institution that relies on the individual. Framed as a conditional statement, IF an institution requires or expects a subject to perform a set of tasks essential for the operations and sustainability of the institution itself, then that institution ought to provide adequate health care to the subject. Framed in this way, the debate on whether or not all Americans should be granted a legally recognized right to health could take a different shape. Instead of merely invoking a sacred right to health as a human right, we could think about why such a right is necessary for the operations and sustainability of the great American machinery, or democratic institutions in particular.
In order to maintain a functioning democracy in the American context, citizens must be physically and psychologically capable to carry out a set of tasks: going to the polls to vote, forming and expressing political opinions, thinking through complex issues, attending political assemblies and associations, etc. Under such a framework, even a right to mental health and a right to education are not far-fetched. But of course, the American machinery does not contain institutions of democracy alone; economic and social institutions also need healthy individuals in order to properly function. Therefore, as long as there remains an argument for the existence of such institutions, a right to health could always be relevant and realizable.
