A Property Right to Medical Care

Posted: 23 Mar 2008

See all articles by Dayna Bowen Matthew

Dayna Bowen Matthew

University of Virginia School of Law

Mark Earnest

University of Colorado at Denver - Health Sciences Center


This article asserts that all Americans have a property right to receive medical care, created by the massive public investment in medical training, research, infrastructure, financing, and delivery that we make to deliver health care in this country. This investment into the public fisc creates a public property interest in medicine as a socially funded, public good. Moreover, the investment made to create this public good obligates the state to exercise its spending power to provide equal access to basic medical care for all Americans. After examining the economic enormity of the public funds that make health care delivery possible in America, this article tests the concept of calling health care a public good, by comparing its features and attributes with those of other acknowledged public goods. While the fit is not perfect, the article concludes that a legally cognizable, property interest in health care exists when medical care is viewed as a public good. From this premise, we conclude that the non-rivalrous, non-excludable nature of health care goods and services must be allocated in a just and equitable manner. In fact, justice requires that in exchange for the universally borne burden to pay for the creation and delivery of medical goods and services in this country, basic health care must be distributed universally and fairly to all.

Keywords: right to health care, public good, property interest, healthcare

JEL Classification: H40, I10, I11, K11, K32

Suggested Citation

Matthew, Dayna Bowen and Earnest, Mark, A Property Right to Medical Care. Journal of Legal Medicine, Vol. 29, No. 1, 2008; U of Colorado Law Legal Studies Research Paper No. 08-10. Available at SSRN: https://ssrn.com/abstract=1111763

Dayna Bowen Matthew (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Mark Earnest

University of Colorado at Denver - Health Sciences Center ( email )

4200 E. Ninth Avenue
Denver, CO 80262
United States

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