The Health Capability Paradigm and the Right to Health Care in the United States

Posted: 12 Oct 2016

Date Written: August 20, 2016


Against a backdrop of non-ideal political and legal conditions, this article examines the health capability paradigm and how its principles can help determine what aspects of health care might legitimately constitute positive health care rights — and if indeed human rights are even the best approach to equitable health care provision. This article addresses the long American preoccupation with negative rights rather than positive rights in health care. Positive health care rights are an exception to the overall moral range and general thrust of U.S. legal doctrine. Some positive rights to health care have arisen from U.S. Constitutional Eighth Amendment cases and federal and state laws like Medicare, Medicaid, the State Children’s Health Insurance Program, the Emergency Medical Treatment and Active Labor Act, and the Patient Protection and Affordable Care Act. Finally, this article discusses some of the difficulties inherent in implementing a positive right to health care in the U.S.

Keywords: Right to Health, Health Capability, Shared Health Governance, Affordable Care Act, Health Capability Paradigm

Suggested Citation

Prah Ruger, Jennifer, The Health Capability Paradigm and the Right to Health Care in the United States (August 20, 2016). Theoretical Medicine and Bioethics, Vol. 37(4), p. 275-292, 2016. Available at SSRN:

Jennifer Prah Ruger (Contact Author)

University of Pennsylvania ( email )

Philadelphia, PA 19104
United States

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