A Healthy Conception of Rights? Thinking Relationally About Rights in a Health Care Context

• Author: Jennifer Llewellyn
• Pages: 57-80

57

A Healthy Conception of Rights?

Thinking Relationally About Rights

in a Health Care Context

jennifer lle wellyn

A. INTRODUCTION

e nature and future of the Canadian health care system and its commitment

to universal access has been the subject of intense public attention and concern

in recent years. Amid the political and social debate, some have renewed eorts

to establish the existence of a right to state-provided health care as a basic hu-

man right deserving of lega l protection. Such advocates point to the recogni-

tion of such a right in international treaties and agreements to which Canada is

a party. Others have looked to the Canadian Charter of Rights and Freedoms

to resolve debates over access to health care, interestingly using it both to seek

access and entitlement and to challenge the core commitment of the current

system to public provision of services as expressed through its restrictions on

private services. Bids to establish entitlement to services or to protect the core

commitment to public services grounded in the Charter have met with signi-

 For further dis cussion, see Tamara Friesen, “e R ight to Health Care” ()  Health

Law Journal .

 For example, the International Co enant on Economic, Socia l and Political Rights,  De-

cember ,  U.N.T.S. ; Can. T.S. () No.  (ratied by Canada on  May ).

Canadian Charter of R ights and Freedoms, Part I of the Constitution Act, , being

Schedule B to the Canada Act  (U.K.), , c.  [Charter].

 See, for example, E ldridge v. British Columbi a (Attorney General), [] S .C.R. 

[Eldridge]; Auton (Guardian ad litem of) v. Briti sh Columbia (Attorney General), []

 S.C.R .  [Auton].

Chaoulli v. Quebec (Atto rney General), []  S.C.R.  [Chaoulli].

58 HealthLawattheSupremeCourtofCanada

cant defeats in recent judicial decisions. ese decisions will have signi cant

implications for the political and social debates over our health care system.

ey are also signicant for what they reveal about the Supreme Court’s con-

ception of the nat ure and role of rights more g enerally and their appl ication to

the health care context specically. eir approach to and understanding of

rights thus has serious implications for the capacity of the Charter to oer just

and full responses to claims in the health care context. is article exami nes the

conception of rights underpinning the Supreme Court’s decision in two recent

key health law cases: Auton and Chaoulli. It argues that the Supreme Court’s

implicit embrace of a traditional liberal individualist conception of rights pre-

vents it from fully appreciating and appropriately responding to claims in the

health care context. In contrast, it is sug gested that a relationa l conception of

rights wou ld oer a more appropriate lens th rough which to view a nd respond

to claims related to the health care system.

Dianne Pothier, in a recent article examining the Supreme Court of Cana-

da’s section  jurisprudence, notes that while equality clai ms are by denition

relative or comparative in nature, other rights claims might also have such a

character. Her recognition of the possibility of framing or conceiving of non-

equality rights claims in relative or comparative terms speaks to something

 Most notably in the Auton and Chaoulli cases.

Auton,supra note .

Chaoulli,supra note .

 I use this term th roughout the paper to suggest a par ticular conceptual approac h to

rights as ad hering to individuals a nd fundamentally a imed at limiting interf erence with

individual f reedom and liberty by other i ndividuals of the collect ive. Jennifer Nedelsky

identies this conception of r ights as deeply rooted in Ang lo-American liberali sm: Jen-

nifer Nedelsky, “Reconc eiving Rights as R elationship” () Rev iew of Constitutional

Studies  at  [“Reconceiving R ights”]. See also Jenn ifer Nedelsky, “Reconceiving Au-

tonomy: Sources, oughts and Possibi lities” () Yale J.L . & Feminism  [“Recon-

ceiving Autonomy”]. Christine Kogg el associates this conception of rig hts in its most

extreme form with lib ertarianism and its conc eption of the self as atomistic, i ndividual-

istic, and possessi ve. Its view of the self generates a view of r ights as needed to protect the

individual u nderstood in abstraction from politica l contexts. She rightly notes , however,

that not all libera l theory is guilt y of such abstraction; in particu lar, she points to liberal

substantive equa lity theorists such a s John Rawls. However, even these more e xpansive

liberal theories a re committed to perspective of rig hts as concerned with the individu al

able to “stand apart from hi s or her ends and obtain a point of view that is i mpartial and

unbiased about al l perspectives”: Christine M. Kogg el, Perspectives on Equality: Con-

structing a Rela tional eory (New York: Rowman & Littleeld P ublishers, ) at .

For a more detailed di scussion, see c.  and c.  genera lly.

 Dia nne Pothier, “Equality a s a Comparative Concept: Mirror, Mirror, on the Wall ,

What’s the Fairest of em All? ” () Sup. Ct.L . Rev.  at .