The Freedom of Health
since 2006, when a three-judge panel of the D.C. Circuit recognized
a fundamental liberty interest in obtaining experimental drugs (later
overturned en banc), health law scholars have debated the
usefulness and propriety of protecting individuals’ liberty in medical
decisionmaking. Unlike the international
“human right to health,” this American “freedom of health” would
operate primarily as a restriction on—rather than as an obligation
for—governmental regulation of medical decisionmaking.
That is, in the somewhat disputed parlance of constitutional law, the
right would be a negative one rather than a positive one,
protected alongside other negative
liberties under the Fourteenth Amendment’s guarantee of substantive due process.
Previous ArticleReflections on the National Association of Insurance Commissioners and the Implementation of the Patient Protection And Affordable Care Act
Timothy Stoltzfus Jost