Article   |   Volume 159, Issue 6

The Freedom of Health

Abigail R. Moncrieff, Symposium Scholar

June 2011

What would have happened if the Patient Protection and Affordable Care Act (PPACA)1 really had authorized government “death panels” that would decide whether or not an elderly patient could get treatment? Leaving aside the Commerce Clause and other constraints particular to Congress, would that kind of direct health care rationing be a constitutional exercise of governmental power in the United States? I think not. I argue here that an emergent substantive due process constraint would invalidate such an exercise; the phantom death panels would violate a constitutional “freedom of health” that is nascent in Supreme Court precedent. Based on that logic, I argue further that the substantive due process analysis of PPACA’s “individual mandate”—the requirement that all Americans carry health insurance—may be more complicated than most scholars have recognized. The existence of a freedom of health implies that we cannot merely dismiss substantive due process challenges to the mandate on the ground that Lochner is dead.

Particularly 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. The Freedom of Health -