Fall 1998 Human Rights Magazine

By Walter H. White, Jr., 1998-99 IRR Section Chair

In my capacity as chair of the Section of Individual Rights and Responsibilities for the 1998-1999 year, it is my pleasure to inaugurate Human Rights magazine under its new editorial board chaired by Joan F. Kessler. With a new editorial board comes a new direction for the magazine—one that we think will be of maximum interest and benefit to our readers. Each issue of Human Rights will be focused on various aspects of a particular human rights topic. For instance, this issue considers the complex question of health as a human right. Future issues will treat the topics of electronic privacy; the friction between children’s rights and parents’ rights; race; and the impact of individual rights on community rights, focusing specifically on the constitutional problems that can ensue when these two rights collide.

Our goal is to provide our readers with timely discussions of the human rights issues that affect all of our lives.

Is There a Right to Health?

While few would argue that health is a critical aspect of the human condition, there is far from universal agreement that individuals have a "right" to health. Moreover, among proponents who contend that such a right exists, the definition of the right to health is unclear, and the challenge of constructing a useful and usable definition is daunting.

This issue of Human Rights includes an article by the late Jonathan M. Mann that identifies the many fields touched by a right to health. According to Mann, medical treatment in addition to public health, sanitation, environmental conditions, education, and nutrition are all important determinants of health status and therefore must be part of the discussion of any health right.

Senator Edward M. Kennedy, in his article entitled "Healthcare for All Americans," argues that healthcare is indeed a human right, and discusses the United States’s progress toward ensuring this "basic human right."

Former Governor Richard D. Lamm’s article addresses the difficult question of allocation of scarce resources, which necessarily accompanies the contention that health is a "right." The thesis of Lamm’s article is that given the barriers to healthcare faced by at least 37 million uninsured Americans, the current distribution of healthcare in the United States is difficult to reconcile with a "right to health."

The article written by Zita Lazzarini opens the discussion of whether benefits subsumed under the "right to health" must be provided in a nondiscriminatory fashion, with a concomitant universality of the right.

As a whole, these and the other articles in this issue force careful consideration of the fundamental question of what is meant by a human right versus what is meant by a legal right. From the specific topic addressed here, we are forced to ask whether economic, cultural, and sociopolitical rights are just moral claims, or whether they are legal claims as well. If they are legal claims, what are the parameters of those legal claims, and how are these rights to be enforced? Are we prepared as a society to protect these rights, and as a society can we afford the responsibility? Most definitions of "health" from philosophers, dictionaries, professional organizations, and religious medical teaching identify health as more than a mere absence of disease. For example, the World Health Organization Constitution defines health as " a state of complete physical, mental, and social well-being and not merely the absence of infirmity"; and Aristotle wrote "In the case of the body, excellence is health in the form of making use of the body without illness." May the substantive rules of law of the human right to health be more narrow than the principles and goals of "health for all" upon which this "right" is based? By advancing the discourse on this issue, it is the goal of Human Rights to promote a core obligation of the ABA’s Section of Individual Rights and Responsibilities. I hope that you find the discussion to be as interesting as I do.

Coming Attractions

A few of the upcoming IRR events include a program during the 1999 ABA Midyear Meeting in Los Angeles that focuses on the long-standing racial tensions in this country; a program on civil rights in America to be presented at the 1999 Annual Meeting in Atlanta; and a major program on human rights during the London 2000 Annual Meeting. In addition, we will continue to promote and evaluate the fairness of the administration of the death penalty in America; expand the Public Schools Involvement project; and attempt to generate guidelines for states to consider prior to amending their state constitutions.

We are publishing a history of the Section. It is a fascinating record and I suspect that no single individual is fully aware of the depth and breadth of past Section activities. We will also, of course, continue to develop our 1998-99 ABA legislative agenda.

This promises to be an exciting year for IRR. I would like to invite all members and friends to participate in the Section and its activities.