An unarmed person killed in cold blood usually results in an outpouring of sympathy, but that’s not what happened when a gunman murdered Brian Thompson in the open streets of Manhattan on December 4. 

Thompson was CEO of America’s largest private insurer, United Healthcare, which is often accused of negligently denying claims. The hoops UHC makes people jump through are awful, a practice known as delay, deny and defend (delay payments, deny claims, defend against litigation). Not getting coverage can lead to despair, crippling debt, and death. In the wake of Thompson’s murder, social media flooded with celebratory memes and laughing emojis. Online sleuths, normally eager to help police find criminals, refused to point out clues.  

Five days later, an Altoona McDonald’s customer recognized Luigi Mangione from surveillance footage and alerted an employee, who called the police. The arrest triggered outrage: “I ordered a McSnitches Get Stitches but they told me the not being a rat machine was down for maintenance,” wrote one Yelp reviewer. “This location is infested with rats. Disgusting, dirty, vile rats crawling all over the place,” said another for a different Altoona McDonald’s. There were countless more, appearing faster than Yelp could remove them. 

It says something disturbing about the state of public discourse when it needs to be pointed out that murder should not be celebrated or shrugged at. Thompson’s death was not some sort of karmic justice for any deaths from denied coverage, and equating the two confuses the difference between positive and negative rights. 

Rights Create Duties 

Philosophers draw a distinction between positive and negative rights. A negative right, or a liberty, is a freedom from coercion. Examples include the freedoms of speech, religion, assembly, and life. They exist without requiring anyone to do anything. 

A positive right, or an entitlement, is a freedom to get something, and thus require someone to take action to provide it. The right to counsel is an example. Contracts, freely agreed to, create positive rights as well. Employees are entitled to compensation and employers are entitled to a certain amount of work. 

Rights create duties for others. My negative right to speech creates a duty for other people to refrain from interfering with my speech. My positive right to counsel creates a duty for other people (through taxes) to provide counsel. My kids’ positive right to being cared for creates a duty for my wife and I to care for them. This is how you keep the kinds of rights straight: negative duties require inaction and positive duties require action. 

As a health insurer, United Healthcare had a positive duty to cover treatments and prescriptions—that’s the contractual obligation they opt into with every customer—but that doesn’t mean every denial of coverage is a dereliction of duty. 

Positive Duties Are Complicated 

No insurer has a positive duty to pay for services it did not agree to pay for, and avoiding payouts within the confines of the contract makes insurance more affordable. Health insurance—private or publicly provided—would not be sustainable if all claims, under all circumstances, were paid for without question. Even government-funded health care has so-called “death panels” to manage spending. 

Denying coverage doesn’t put a disease in someone’s body as Thompson’s murderer put bullets in him. 

If your reaction is “yes but United Healthcare took it too far,” that illustrates my point: their alleged crimes were a matter of magnitude, not type. They might have crossed a line somewhere but it’s not obvious where that line was. Is an alternative but cheaper medical device enough to provide care? Will a treatment sufficiently improve longevity or quality of life? What is the appropriate dose for an off-label use of an expensive drug? There’s room for reasonable disagreement about how insurers should act, but there is no way to put an innocent spin on the gunman. Denying coverage doesn’t put a disease in someone’s body as Thompson’s murderer put bullets in him. 

Negative duties are not complicated. Ensuring freedom of speech requires police and courts to stop people who try to silence others, a rarely required task. But ensuring the right to counsel requires armies of public defenders doing only that job. It is much easier to not strangle children than to keep them fed, housed, clean, and safe.  

There Are Always Trade-offs 

Because positive duties are more demanding, there’s more grey area as to what constitutes fulfilling them. Public defenders are available, but they are stretched so thin that the counsel they provide can be of questionable value. Is that a dereliction of duty? Maybe, but it’s not obvious.  

Trade-offs are unavoidable so it is hard to figure out how far “too far” is. Insurers that pay for every overpriced treatment are great for the people who have that insurance, but such approvals require premiums that are out of reach for most. Fewer approvals render the insurance more affordable (Thompson was deeply concerned about keeping premiums low), but runs the risk of shirking your obligations. And that is before we consider the duties insurers have to shareholders. 

UHC’s “greedy” practices make more sense in the context of the ludicrously expensive healthcare industry which is rife with fraud, terrible incentives, and anti-competitive regulations. People spewing vitriol over the insurer’s billions in profits would be surprised to learn that UHC’s 2023 net profit margin (the percent of revenue that is profit) was just 5.8 percent, less than half of the green energy industry’s 15 percent. 

Trade-offs and conflicting duties are why society charges the court system with investigating improper denials. The law is slow and slow justice can be a death sentence, but the alternative leads to abuse and terror. It is no coincidence that when it comes to courts, fast is the favored speed of fascists. 

Providing health insurance has a lot of grey areas. Its complexity and expense mean that it is plagued by everything from honest mistakes to malicious negligence. In every rich country, healthcare spending is a massive chunk of GDP because healthcare is complicated. It is a hard duty to fulfill. 

You know what is not hard? Not shooting somebody.