The freedom of health

University of Pennsylvania Law Review

Volumn 159, Issue 6, 2011, Pages 2209-2252

  Moncrieff, Abigail R ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 79960171498     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (77)

1. See Jim Rutenberg & Jackie Calmes, Getting to the Source of the 'Death Panel' Rumor, N.Y. TIMES, Aug. 14, 2009, at A1 (detailing the political creation of administrative-euthanasia-panel rumors and their lack of basis in the reform bill itself);
2. see also A Look at Claims About Health-Care Overhaul - Close Up, SEATTLE TIMES, Aug. 11, 2009, at A3 (debunking Governor Palin's and other health care bill critics' view that the bill would create "death panels").
3. See Lochner v. New York, 198 U.S. 45, 64 (1905) (striking down a state regulation of the hours of bakery employees as an unconstitutional infringement on the substantive due process right to freedom of contract), abrogated by W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); Mark A. Hall, The Constitutionality of Mandates to Purchase Health Insurance, 37 J.L. MED. & ETHICS (SPECIAL SUPPLEMENT S2) 38, 45 (2009) (arguing that the mandate implicates only economic interests and therefore, given the death of the Lochner era, implicates no modern substantive due process right).
4. See B. Jessie Hill, Reproductive Rights as Health Care Rights, 18 COLUM. J. GENDER & L. 501, 537-39 (2009) [hereinafter Hill, Reproductive Rights] (urging reproductive rights advocates to ground the abortion right in a constitutional freedom of health);
5. B. Jessie Hill, The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 TEX. L. REV. 277, 324-28 (2007) [hereinafter Hill, Tale of Two Doctrines] (outlining the Supreme Court's treatment of the individual freedom of health and the state interest in regulating health as separate doctrines and tracing them through Supreme Court jurisprudence);
6. Elizabeth Weeks Leonard, The Public's Right to Health: When Patient Rights Threaten the Commons, 86 WASH. U. L. REV. 1335, 1386-88 (2009) (arguing that there should not be an individual freedom of health on the ground that such a freedom would endanger public health);
7. John A. Robertson, Controversial Medical Treatment and the Right to Health Care, HASTINGS CENTER REP., Nov.-Dec. 2006, at 15, 16 [hereinafter Robertson, Controversial Medical Treatment] (providing legal and historical foundations for a constitutional freedom of health that could be applied in Abigail Alliance);
8. John A. Robertson, Embryo Culture and the "Culture of Life": Constitutional Issues in the Embryonic Stem Cell Debate, 2006 U. CHI. LEGAL F. 1, 32-37 [hereinafter Robertson, Embryo Culture] (arguing that the constitutional freedom of health should prohibit restrictions on embryonic stem cell research);
9. Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. 1813, 1815-17 (2007) (basing the freedom of health in a right of self-defense). At least one scholar considered and elaborated this possibility before Abigail Alliance was decided.
10. See Elizabeth G. Patterson, Health Care Choice and the Constitution: Reconciling Privacy and Public Health, 42 RUTGERS L. REV. 1, 22-28 (1989) (evaluating Supreme Court precedent on the right to refuse proffered care).
11. See generally ISAIAH BERLIN, Two Concepts of Liberty (drawing out and discussing the difference between positive and negative rights), in FOUR ESSAYS ON LIBERTY 118, 122-34 (1969). For a succinct modern legal discussion of the distinction and its limitations,
12. see Richard A. Posner, The Cost of Rights: Implications for Central and Eastern Europe - and for the United States, 32 TULSA L.J. 1, 2-3 (1996).
13. For a longer critique of the distinction as it applies to American constitutional doctrine, see David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864 (1986).
14. See Sarah Palin, Statement on the Current Health Care Debate, FACEBOOK (Aug. 7, 2009, 4:26 PM), http://www.facebook.com/note.php?not-id=113851103434 (claiming that the health reform bill would require "my parents or my baby with Down Syndrome ... to stand in front of [President] Obama's 'death panel' so his bureaucrats can decide, based on a subjective judgment of their 'level of productivity in society,' whether they are worthy of health care").
15. see also Toby Harnden, Obama Retreats on 'End of Life' Plans, DAILY TELEGRAPH (London), Aug. 15, 2009, at 5 (discussing the political demise of § 1233);
16. Charles Hurt, Granny Lives! 'End of Life' Out of Health Plan, N.Y. POST, Aug. 14, 2009, at 10 (same);
17. Clarence Page, Editorial, 'Death Panels' Myth Just Won't Die, CHI. TRIB., Nov. 1, 2009, at 31 (same).
18. This line of analysis does not, of course, speak to the mandate's validity under the Commerce Clause or under various taxing provisions of the Constitution, which have been scholars' and courts' primary focus so far. See, e.g., Steven J. Willis & Nakku Chung, Constitutional Decapitation and Healthcare, 128 TAX NOTES 169, 178-93 (2010) (arguing that the penalty for failure to comply with the individual mandate is unconstitutional under taxing provisions of the Constitution).
19. See generally Martha Minow, Which Question? Which Lie? Reflections on the Physician-Assisted Suicide Cases, 1997 SUP. CT. REV. 1 (discussing the risk of abuse and coercion that might arise if assisted suicide were permitted and concluding that the Supreme Court was right to focus on that risk even though the restrictive regime does not eliminate the practice of assisted suicide).
20. International human rights are difficult to enforce, so I hesitate to embrace them as obligations. See generally JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005).
21. See, e.g., Elizabeth Weeks Leonard, State Constitutionalism and the Right to Health Care, 12 U. PA. J. CONST. L. 1325, 1331-371 (2010) (reviewing the arguments and literature on both sides of the assertion that the Constitution is a "charter of negative rights").
22. Stephen Holmes and Cass Sunstein have also discussed this point at length. See generally STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES (1999).
23. See Reeves, Inc. v. Stake, 447 U.S. 429, 436-37 (1980) ("The basic distinction ... between States as market participants and States as market regulators makes good sense and sound law ... [because] the Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace."); see also Norman R. Williams & Brannon P. Denning, The "New Protectionism" and the American Common Market, 85 NOTRE DAME L. REV. 247, 294-304 (2009) (discussing the role of the market-participant doctrine in Supreme Court jurisprudence with particular focus on a recent case, Department of Revenue v. Davis, 553 U.S. 328 (2008)).
24. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 541-42 (1985) ("To say that the distinction between 'governmental' and 'proprietary' proved to be stable, however, would be something of an overstatement."); Dan T. Coenen, The Impact of the Garcia Decision on the Market-Participant Exception to the Dormant Commerce Clause, 1995 U. ILL. L. REV. 727, 733-34 (discussing arguments that the ruling in Garcia undermines the vitality of the Dormant Commerce Clause exception for state proprietary functions);
25. Treg A. Julander, State Resident Preference Statutes and the Market Participant Exception to the Dormant Commerce Clause, 24 WHITTIER L. REV. 541, 573 (2002) (acknowledging that "as more levels of governmental action are added, and regulatory and proprietary powers are mixed," courts could very well arrive at different conclusions with respect to the same conduct (footnote omitted)).
26. There is some debate as to where exactly tax exemption falls within this framework. In Department of Revenue v. Davis, for example, there was disagreement as to whether tax-exempt status for state municipal bonds (and not for similar out-of-state bonds) should be seen as solely participatory or as part regulatory, part participatory. See 553 U.S. at 345 (Souter, J., concurring) (arguing that market regulation is acceptable when it goes "hand in hand" with participation); cf. Dan T. Coenen, The Supreme Court's Municipal Bond Decision and the Market-Participant Exception to the Dormant Commerce Clause, 70 OHIO ST. L.J. 1179, 1184-93 (2009) (arguing that Justice Souter mistakes this dual approach for an either/or designation).
27. See generally C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964 (1978) (developing and evaluating three theories of the scope of speech protection under the First Amendment);
28. Harry H. Wellington, On Freedom of Expression, 88 YALE L.J. 1105 (1979) (analyzing why and to what extent free expression deserves governmental immunity).
29. See, e.g., Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 669 (1998) (rejecting a free speech challenge to the exclusion of a candidate from a debate on a public broadcasting station). See generally Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 25-27 (discussing time, place, and manner restrictions on the freedom of speech);
30. Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 SUP. CT. REV. 233, 236-56 (discussing Supreme Court jurisprudence regarding the government's ability to regulate public forums while still respecting the First Amendment).
31. See Potter Stewart, "Or of the Press," 26 HASTINGS L.J. 631, 633 (1975) ("The publishing business is, in short, the only organized private business that is given explicit constitutional protection."). Of course, regulations of broadcast media have been more tolerable.
32. See Matthew L. Spitzer, The Constitutionality of Licensing Broadcasters, 64 N.Y.U. L. REV. 990, 990 (1989) (noting that, while licensing of newspapers is unconstitutional, licensing of broadcasters is acceptable due to spectrum scarcity);
33. Jonathan Weinberg, Broadcasting and Speech, 81 CALIF. L. REV. 1101, 1106 (1993) ("Ordinary First Amendment philosophy strongly disfavors government licensing of speakers; the broadcast regulatory system, by contrast, embraces such licensing." (footnote omitted)).
34. Religious freedom, of course, is an exception to this rule. The Establishment Clause restricts governmental participation in religious markets. See Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 117 (1992) ("The Establishment Clause ... has been interpreted to forbid the government to aid or advance religion.");
35. see also Jesse H. Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 MINN. L. REV. 329, 330 (1963) (arguing that public schools violate the Establishment Clause through "solely religious activity" that is likely to compromise or influence a student's freedom of religious choice or belief).
36. But cf. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1414-16 (1990) (arguing that the Establishment Clause was meant to prevent Congress from interfering with state establishments of religion that existed at the time of the founding).
37. See generally Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195 (1992) (rebutting Michael McConnell's interpretation of the Establishment Clause);
38. Mark Tushnet, The Constitution of Religion, 18 CONN. L. REV. 701 (1986) (examining the seemingly inconsistent outcomes in Establishment Clause cases through the lens of the faded republican tradition).
39. See generally GEOFFREY R. STONE et al., CONSTITUTIONAL LAW 1598-609 (6th ed. 2009) (discussing the doctrine of unconstitutional conditions).
40. International Covenant on Economic, Social and Cultural Rights art. 12, Dec. 16, 1966, 993 U.N.T.S. 3; see also OFFICE OF THE UNITED NATIONS HIGH COMM'R FOR HUMAN RIGHTS & WORLD HEALTH ORG., FACT SHEET NO. 31, THE RIGHT TO HEALTH 1 (2008) [hereinafter OHCHR FACT SHEET], available at http://www.ohchr.org/Documents/Publications/Factsheet31.pdf (highlighting the "right to health" as a "fundamental part of our human rights").
41. See, e.g., Eleanor D. Kinney, The International Human Right to Health: What Does This Mean for Our Nation and World?, 34 IND. L. REV. 1457, 1471 (2001) ("[I]f the international right to health is to mean anything at all, it does seem appropriate to impose some implementation obligations on states and also require affirmative action on the part of government ... .");
42. Wendy K. Mariner, Law and Public Health: Beyond Emergency Preparedness, 38 J. HEALTH L. 247, 272-75 (2005) (recognizing that the obligations to protect people from harm and to fulfill their health needs require affirmative government action).
43. See, e.g., Erik B. Bluemel, The Implications of Formulating a Human Right to Water, 31 ECOLOGY L.Q. 957, 969 (2004) ("The right to water might also be placed as a subordinate right to that of the right to health ... .");
44. Gary E. Jones, Regulatory Takings and Emergency Medical Treatment, 47 SAN DIEGO L. REV. 145, 146 (2010) (analyzing the conflict between the right to health and our country's fee-for-service health care system);
45. Patti E. Phillips, Adding Insult to Injury: The Lack of Medically-Appropriate Housing for the Homeless HIV-Ill, 45 U. MIAMI L. REV. 567, 597-611 (1990-1991) (extending the right to health to argue for the provision of housing for indigent people with HIV).
46. See, e.g., Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC) at 728-29 (S. Afr.) (outlining the right to health in a case involving the antiviral drug Nevirapine); see also George J. Annas, The Right to Health and the Nevirapine Case in South Africa, 348 NEW ENG. J. MED. 750, 750-51 (2003) (using the Nevirapine case to explore the power of the right to health to obligate government provision of care);
47. Mary Ann Torres, The Human Right to Health, National Courts, and Access to HIV/AIDS Treatment: A Case Study from Venezuela, 3 CHI. J. INT'L L. 105, 111-14 (2002) (highlighting the implications of a prominent Venezuela Supreme Court case on the government's failure to provide antiviral therapies to treat HIV/AIDS);
48. Alicia Ely Yamin, Not Just a Tragedy: Access to Medications as a Right Under International Law, 21 B.U. INT'L L.J. 325, 339-41 (2003) ("Costa Rica, India, Venezuela, Columbia, Argentina, and South Africa are among the many countries in which national courts have determined that the state has obligations to provide medications in HIV/AIDS cases and for other diseases.").
49. See, e.g., Robert Longley, Health Care Reform and 'Death Panels' - The Facts, ABOUT.COM, http://usgovinfo.about.com/od/healthcare/a/deathpanels.htm (last visited Mar. 15, 2011) ("Across the Internet, blogs and e-mails are claiming that the America's Affordable Health Choices Act of 2009 (H.R. 3200) requires all Medicare beneficiaries to attend mandatory classes once every five years in which they will be instructed on how to end their lives.");
50. Domenico Montanaro, RNC Perpetuates "Death Panels" Rumor, MSNBC FIRST READ (Aug. 19, 2009, 2:27 PM), http://firstread.msnbc.msn.com/-news/2009/ 08/19/4430434-rnc-perpetuates-death-panelsrumor (reporting on Republican National Committee Chairman Michael Steele's references to Medicare rationing);
51. Sam Stein, Grassley Endorses "Death Panel" Rumor: "You Have Every Right to Fear," HUFFINGTON POST (Aug. 12, 2009, 1:31 PM), http://www.huffingtonpost.com/2009/08/12/grassley-endorses-death-p-n-257677. html (quoting Iowa Senator Charles Grassley's references to death panels, all of which focused on Medicare beneficiaries' end-of-life decisions).
52. See Questions & Answers: Vaccine Against 2009 H1N1 Influenza Virus, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/H1N1flu/ vaccination/public/vaccination-qa-pub.htm (last visited Mar. 15, 2011) (explaining the CDC's recommendation that high-risk groups receive vaccines first);
53. see also Betsy McKay, Public Faces Long Wait to Get New Flu Vaccine, WALL ST. J., Oct. 5, 2009, at A1 (describing the allocation of the initially limited vaccine supply);
54. Donald G. McNeil Jr., Vaccine Supply May Miss Swine Flu Peak, N.Y. TIMES, Sept. 12, 2009, at A11 (expressing epidemiologists' concern that vaccines would not be available soon enough to adequately protect the population).
55. See 2009 H1N1 Vaccination Recommendations, CTRS. FOR DISEASE CONTROL AND PREVENTION (Oct. 15, 2009, 10:00 AM), http://www.cdc.gov/h1n1flu/vaccination/ acip.htm (listing vaccine distribution priorities).
56. See, e.g., 2004 N.J. Laws 1545-46 (providing for a $500 civil penalty for willful or knowing violations of a 2004-05 influenza vaccine reallocation plan); OR. REV. STAT. § 433.040 (2009) (providing for a $500 civil penalty for violations of a health authority vaccination plan in cases of shortage); R.I. GEN. LAWS § 23-76-3 (Supp. 2008) (same). See generally James G. Hodge, Jr. & Jessica P. O'Connell, The Legal Environment Underlying Influenza Vaccine Allocation and Distribution Strategies, 12 J. PUB. HEALTH MGMT. PRACTICE 340 (2006) (analyzing state responses to the 2004-05 flu vaccine shortage).
57. See generally State & Local Vaccination Guidance: Vaccine Distribution Q&A, CTRS. FOR DISEASE CONTROL & PREVENTION (Nov. 3, 2009, 4:00 PM), http://www.cdc.gov/H1N1flu/vaccination/statelocal/centralized- distribution-qa.htm (outlining the vaccine distribution system to states).
58. See Betsy McKay et al., Obama Targets Swine-Flu Response, WALL ST. J., Oct. 26, 2009, at A3 (explaining federal government efforts to purchase and support production of vaccine doses).
59. See Benjamin E. Berkman, Incorporating Explicit Ethical Reasoning into Pandemic Influenza Policies, 26 J. CONTEMP. HEALTH L. & POL'Y 1, 8-9 (2009) ("[P]roviders will ... not be bound by the guidelines ... and likely will feel pressured to give vaccine to ... vaccine seekers who are not at elevated risk of infection or complication."); Hodge & O'Connell, supra note 137, at 342 (noting that CDC guidelines are merely advisory).
60. See Jerry Menikoff, Beyond Abigail Alliance: The Reality Behind the Right to Get Experimental Drugs, 56 U. KAN. L. REV. 1045, 1057-58 (2008).
61. See id. at 1051; cf. Michael D. Greenberg, AIDS, Experimental Drug Approval, and the FDA New Drug Screening Process, 3 N.Y.U. J. LEGIS. & PUB. POL'Y 295, 300 (2000) (noting that FDA regulation may be creating a "drug lag" in the United States as compared to drug development in Europe).
62. See Elizabeth Weeks Leonard, Right to Experimental Treatment: FDA New Drug Approval, Constitutional Rights, and the Public's Health, 37 J.L. MED. & ETHICS 269, 274 (2009).
63. See, e.g., Clarification of FDA Regulations and Guidance on "Compassionate" and "Humanitarian" Use, STANFORD U. RES. COMPLIANCE OFF. (Jan. 2006), http://humansubjects.stanford.edu/research/ documents/compassionate-humanitarian-use-FDA-GUI01036.pdf (explaining FDA regulations and guidance for the compassionate-use exception);
64. UCSF Human Research Protection Program Guidelines on Emergency Use and Compassionate Use, U.C.S.F. HUM. RES. PROTECTION PROGRAM, http://www.research. ucsf.edu/chr/guide/chrEmerUse.asp#CU (last visited Mar. 15, 2011) (same).
65. See Sheryl Gay Stolberg, Childhood Obesity Battle Is Taken Up by First Lady, N.Y. TIMES, Feb. 10, 2010, at A16 (discussing Michelle Obama's program to "revamp" the way American children eat and exercise).
66. See, e.g., Saul Levmore, Taxing Obesity - Or Perhaps the Opposite, 53 CLEV. ST. L. REV. 575, 582 (2005-2006).
67. See Jeff Strnard, Conceptualizing the "Fat Tax": The Role of Food Taxes in Developed Economies, 78 S. CAL. L. REV. 1221, 1226 (2005) (discussing food taxes that "explicitly attempt to influence behavior to meet public health goals").
68. See Cynthia A. Baker, Bottom Lines and Waist Lines: State Governments Weigh In on Wellness, 5 IND. HEALTH L. REV. 185, 189 (2008) ("[T]o the extent government supported wellness initiatives ostracize, isolate, and punish ... unhealthy individuals, those initiatives should be doubly criticized ... .");
69. Thomas J. Parisi, The Onus Is on You: Wellness Plans and Other Strategies Being Employed for Patients to Take Ownership of Their Health, 13 QUINNIPIAC HEALTH L.J. 243, 268-69 (2010) (discussing methods by which employers use wellness programs to penalize nonparticipants).
70. See, e.g., Randy Barnett et al., Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional, LEGAL MEMORANDUM (Heritage Found., Washington, D.C.), Dec. 9, 2009, at 1-2 (arguing that the individual mandate exceeds Congress's power under the Commerce Clause).
71. See Hall, supra note 3, at 41 (discussing possible constitutional challenges to the individual mandate based upon religious freedom, due process, and the Takings Clause); James Taranto, Op-Ed., 'A Commandeering of the People,' WALL ST. J., July 24-25, 2010, at A11 (suggesting an argument against the individual mandate premised upon the Tenth Amendment's preservation of power to the people).
72. See PPACA §§ 1501, 16106, 26 U.S.C.A. § 5000A (West Supp. 1A 2010) (setting the penalty scheme for failure to maintain minimal essential coverage); see also STAFF OF J. COMM. ON TAXATION, 111TH CONG., TECHNICAL EXPLANATION OF THE REVENUE PROVISIONS OF THE "RECONCILIATION ACT OF 2010," AS AMENDED, IN COMBINATION WITH THE "PATIENT PROTECTION AND AFFORDABLE CARE ACT" 31-34 (Comm. Print 2010), available at http://www.jct.gov/publications.html?func=startdown&id=3673 (providing information on the present law and the penalties that PPACA will impose).
73. See Mark A. Hall & Gerard F. Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. PA. L. REV. 1637, 1640-41, 1672-73 (1992) (describing the discretion provided insurers to conduct "medical necessity" review in health care contracts).
74. See Ricardo Alonso-Zaldivar, Obama Plan to Be Costly for Some Uninsured, DETROIT FREE PRESS, July 1, 2010, at B5 (acknowledging that new health coverage for previously uninsured individuals may have premiums as high as $900);
75. Janet Trautwein, Op-Ed., Why We Need a Strong Individual Mandate, WALL ST. J., Nov. 11, 2009, at A19 (pointing out that as long as the penalty for failing to purchase insurance is not comparable to the cost of coverage, Americans will continue to avoid procuring insurance).
76. Median household income in the United States is about $40,000 per year. See Table of Personal Income for People 25 Years Old and Over with Work Experience in 2009, U.S. CENSUS BUREAU, http://www.census.gov/hhes/www/ cpstables/032010/perinc/new03-010.htm (last visited Mar. 15, 2011).
77. See J. Paul Singleton, Can You Really Have Too Much of a Good Thing?: How Benevolent Tax Policies Have Attributed to the Explosion of Health Care Costs and How New Policies Threaten to Do More of the Same, 8 DEPAUL BUS. & COM. L.J. 305, 326-28 (2010) (explaining how the IRS's inability to enforce the penalty through use of liens or seizers will decrease the individual mandate's effectiveness).