The freedom of health.

• Author: Moncrieff, Abigail R.
• Position: Symposium Scholar

INTRODUCTION I. THE FREEDOM OF HEALTH A. The Freedom of Health in the Supreme Court 1. Freedom to Reject Care a. Origins b. Modern Cases 2. Freedom to Obtain Care 3. Conclusion B. The Freedom of Health Versus the Right to Health 1. The Positive-Negative and Participant-Regulator Distinctions a. Positive-Negative b. Participant-Regulator 2. The Freedom of Health as a Restriction on Regulation and the Right to Health as a Requirement for Participation C. Conclusion: The Freedom of Health II. RECENT DEBATES A. Death Panels B. H1N1 Vaccine Distribution C. Experimental Drugs D. Obesity and Smoking Regulations E. The Individual Mandate CONCLUSION INTRODUCTION

What would have happened if the Patient Protection and Affordable Care Act (PPACA) (1) really had authorized government "death panels" (2) 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. (3)

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), (4) health law scholars have debated the usefulness and propriety of protecting individuals' liberty in medical decisionmaking. (5) 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. (6) That is, in the somewhat disputed parlance of constitutional law, the right would be a negative one rather than a positive one, (7) protected alongside other negative liberties under the Fourteenth Amendment's guarantee of substantive due process. (8)

As a handful of scholars have already pointed out, there is support in Supreme Court precedent for this kind of constitutional freedom of health. (9) Particularly in its forced treatment, right to die, and reproductive fights cases, the Supreme Court has hinted that the constitutional right to bodily integrity includes both a freedom to reject unwanted medical intervention (10) and a freedom to obtain certain health care goods and services. (11) In other words, the Supreme Court has hinted that Fourteenth Amendment "liberty" includes individual autonomy in health care decisionmaking.

Both the existence and the strength of the Supreme Court's freedom of health, however, are subject to ongoing debate. We know, at a minimum, that the Supreme Court's hints convinced two D.C. Circuit judges to recognize the health care liberty interest, to treat it as "fundamental," and to apply it to invalidate longstanding administrative processes for drug approval. (12) But we also know that litigants asserting the freedom of health in American courts have not always succeeded. (13) There are, in fact, more Supreme Court evasions of the freedom of health than there are Supreme Court acknowledgements of it, (14) and the freedom of health has rarely been used at all--and never been used alone--to invalidate state action.

Importantly, though, the rarity of judicial invalidation does not prove that the freedom of health does not or cannot exist. First, like all constitutional freedoms, the freedom of health may be implicitly protected in congressional decisionmaking. Indeed, the difficulties in passing health care reform suggest that political constraints of a constitutional dimension might be in play. Second, like all constitutional freedoms, the freedom of health could not be absolute. Even if given the highest level of constitutional protection--if designated a "fundamental liberty interest"--individuals' freedom of health would be subject to a state-interest override. In standard doctrinal terms, the individual right could be infringed if the restrictive legislation were "narrowly tailored to serve a compelling state interest." (15) If situated as a typical Fourteenth Amendment liberty, therefore, the constitutional freedom of health would prohibit the government from burdening autonomous health care decisions without a compelling reason, but it would not prohibit narrowly tailored public-health-justified or other-state-interest-justified infringements. So framed, this constitutional freedom seems already to exist, and the Supreme Court certainly could formalize it without deviating from precedent.

This Article first draws out the freedom of health from Supreme Court precedent and demonstrates that, like other substantive constitutional rights, the freedom of health is a negative liberty that must be balanced against legitimate and compelling regulatory projects. The Article then applies that understanding of the freedom to evaluate some proposed and actual health care regulations that have made headline news in the last decade. I consider the constitutionality of the phantom death panels, the H1N1 vaccine distribution program, the FDA's restrictions on access to experimental drugs, PPACA's obesity and smoking regulations, and, of course, PPACA's individual mandate. Should those programs and regulations be constitutionally permissible under a Fourteenth Amendment freedom of health?

My answer is that the freedom of health, if formalized in its current form, would invalidate some but not all of the proposed interventions. "Death panels" (in the form that Governor Palin understood them to take (16)) would be prototypically unconstitutional under the new rubric (though incentives for doctors to gather and enforce advanced directives (17)--the would-have-been effect of the since-abandoned provision that sparked the "death panels" debate-certainly would not be). The vaccine distribution program during the 2009 H1N1 flu outbreak could have raised constitutional questions if the states had included criminal or high civil penalties for misdistribution of the vaccine, but in the absence of such penalties, the distribution guidelines did not offend the freedom of health. Restrictions on access to experimental drugs should be constitutionally permissible because they promote a compelling state interest in gathering information about the safety and efficacy of new drugs, but the current regulatory regime may not be sufficiently "narrowly tailored" to the state interest it seeks to promote. Obesity regulations might be unconstitutional, depending on their form, while most anti-smoking regulations should not be. PPACA's wellness initiatives do not raise serious constitutional problems.

Perhaps most interestingly (and certainly most relevantly given present litigation (18)), the individual mandate would require a more careful analysis under a freedom of health than scholars and courts have assumed. That said, the state interest in enforcing the mandate seems sufficiently strong to support some infringement of individual liberty, and the actual law supporting the individual mandate imposes a negligible burden on the relevant liberty interest. The individual mandate is a necessary element of health insurance regulation, assuming that universal coverage is a reasonable goal; without a mandate, adverse selection will cause many individuals to be priced out of coverage. PPACA's individual mandate seeks to correct adverse selection through an almost entirely rhetorical set of laws, which impose almost no actual burden on the constitutional liberty interest. As written, no executive official has authority to enforce the mandate against noncompliant individuals. As such, the current "mandate" should pass the strict scrutiny test on the ground that it poses an infinitesimal burden to liberty. If, however, Congress were to bolster the mandate with real enforcement power and heftier fines, the constitutional analysis under the freedom of health should, I think, become harder. (19)

This Article proceeds as follows. Part I fleshes out the freedom of health, identifying its foundations in existing American precedent and describing its differences from the "right to health" in international law. Part II considers the controversial proposals and enactments that have made news in recent health care reform debates, using analysis of those issues to develop the framework for enforcing a freedom of health.

1. THE FREEDOM OF HEALTH

   As a handful of scholars have pointed out, a constitutional freedom of health already exists at the margins of American law. (20) In the forced treatment, reproductive rights, and right-to-die cases, the Supreme Court has hinted that Americans hold an important--perhaps fundamental--liberty interest in directing their own health care, which at least includes a fight to reject unwanted medical interventions and might include a right to obtain desired medical treatment. Importantly, this constitutional fight, like most American constitutional fights, is a so-called "negative" rather than "positive" right. That is, the Supreme Court has never indicated that the national or state governments are required to provide Americans with access to health care--only that they may not encumber that access without justification. This Part will briefly trace the freedom of health through Supreme Court precedent and then draw a rough sketch of the doctrine that emerges, distinguishing the "negative" American...