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Theor Med Bioeth. 2016 Aug;37(4):275-92. doi: 10.1007/s11017-016-9371-y.

The health capability paradigm and the right to health care in the United States.

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Perelman School of Medicine and School of Social Policy and Practice, University of Pennsylvania, 3701 Locust Walk, Philadelphia, PA, 19104, USA.


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.


Affordable Care Act; Health capability; Health capability paradigm; Right to health; Shared health governance

[Indexed for MEDLINE]

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