Law  - Fall 2009
Racism, Health Disparities, and the Law
Professor Vernellia R. Randall
The University of Dayton School of Law

 Social Policy is Health Policy is Law


Defining a Right to Health

Rising Wealth Inequality: Why We Should Care

Please notify me of any typo, misspelling, etc.

"There is an Axis of Evil,  An Axis of Evil of inequality, of racism, of poverty, of economic deprivation
 that is adversely affecting the health of the American people." David Williams


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Health Equity Search


Steven D. Jamara

Abstract from:  Steven D. Jamara, The International Human Right to Health, 22 Southern University Law Review 1, 8-11 (Fall 1994) (footnotes omitted)

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Just as one needs to know what speech is when discussing the right to freedom of speech, one needs to know what health is when discussing the right to health. To extend the analogy further, just as the right of free speech is not the same as speech itself, so the right to health is not the same as health itself. Just as "speech" has been expanded to include*9 non-verbal expression and restricted to exclude from protection certain kinds of speech, and just as "equality" may mean equal opportunity under law, so "health" may well take on a specialized meaning different from either its common or its public policy usages. Thus a claim of "I have a right to health" could be given an artificially narrow meaning in the law such as a right to equal access to the health care system. But taken in a broader sense the right to health could include non-discrimination rights as well as other aspects such as a base level of sanitation, a base level of public health activities, and some level of medical care. The point is that a human right, cognizable under law, need not be coterminous with a more popular conception of health or even with non-legal, policy-based, or politically-oriented claims. The substantive rules of the law of the human right to health may well be more narrow than the policies, principles and goal of health-for-all on which it is based.

A claim to health cannot be understood to be a demand to cure incurable diseases or to alter unalterable physical attributes or to reverse the aging process.  Thus any definition of health must be either an unattainable ideal or highly individuated and relative to each person's own physical characteristics. The human right to health must take *10 into account this individuated attribute of health.

As starting points I have chosen definitions from Aristotle, the World Health Organization, the American Heritage Dictionary and Hindu medical teachings. The following definitions or descriptions all identify health as more than the absence of disease:


      "In the case of the body, excellence is health in the form of making use of the body without illness."

World Health Organization:

      "Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."

American Heritage Dictionary of the English Language:

      "2. The state of an organism functioning normally without disease or abnormality. 3. Optimal functioning with freedom from disease and abnormality."

Ayur Veda (Sanskrit meaning "science of life"):

      * "In this concept the stress is on positive health and not on the absence of disease. Health concerns not only the body, but also the mind, the freedom of the human being."

The definitions of philosophers, of public health bodies, of dictionaries, and of medical systems define an end to be achieved. As such, they may point policy-makers toward a worthy end, but they do not function as either a legal principle or rule capable of application to particular situations. They indicate that health is more than the absence of disease and is a state of affirmative well-being. This understanding of health implies that the right to health ought to be concerned with more than medical care, disease, and infirmity. This understanding of health means that the right to health should, if possible, reflect the broader, affirmative notion of health as more than the absence of disease. The balance of this section is concerned with the problem of the definition of health as a topic in itself in the human rights field. It concludes with advancing a definition of a human right to be used for the balance of this article.

As will be explored below, there is more content to the right to health than these teleological definitions. This content, as used in political and international health discourse, generally identifies fields of endeavor, such as medical treatment, sanitation, etc., in which to invest resources to help * people attain the highest level of health possible. This loose use of the term "right to health" is acceptable and perhaps even laudable in prodding states into action. However, it is not the sort of rigorous, limited use one expects for a fundamental human right. Or to put it another way, if one is to accuse a state of failing to perform its duty under the right to health, and health is fundamental, then the accusation is one of significance. Consequently, one must make the claim for those fundamental, serious breaches which human rights law is best at addressing.

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01 Defining Health                             x
02 Health Disparities                                   x
03 Health Policy & the Law
04 Wealth Inequalities                                  x
05 Racial Inequality                            x
05 Racial Inequality                            x
06 Physical Environment
07 Health Care Disparities                                  x
08 Pulling it together                                              x


Related Pages:
Home ] Up ] Personal Health Care Experience ] HealthUnitedStates2007.pdf ] Tips for Staying Healthy ] [ Defining a Right to Health ] 02 Learning Objectives ]
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Home ] Syllabus ] Defining Health ] Disparities and Social Determinants ] Health Law and Policy ] Removing  Income and Wealth Inequalities ] Improving Racial Inequality ] Eliminating Health Care Disparities ] Pulling It All Together ]
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Vernellia Randall.  All Rights Reserved

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