A new article co-authored by Penn Law Professor and Dean-designate Theodore Ruger, Jennifer Prah Ruger of Penn, and George Annas of Boston University finds that while the U.S. Constitution does not expressly guarantee a right to health care, in the past 50 years Congress and the U.S. Supreme Court have incrementally crafted an array of health care rights, though the expansion of these rights has properly resulted from legislative and government rulemaking, not judicial fiat.
The article, “The Elusive Right to Health Care Under U.S. Law,” published in the current issue of the New England Journal of Medicine, notes that America’s incomplete web of health care rights is the result of five decades’ worth of legislation passed by Congress, as well as Supreme Court decisions, that have addressed a range of issues including emergency room care, abortion, and children’s health insurance.
Moreover, the passage in 2011 of the Affordable Care Act (ACA) guaranteeing all citizens access to health insurance and the 2012 Supreme Court decision upholding most the ACA’s provisions “represent a substantial but highly uncertain step toward operationalizing a more robust and complete right to health care,” according to Ruger and his co-authors.
But the study’s authors find that the Supreme Court has a “well defined limit” in its willingness to craft rights to health care. Notably, in its decisions the Court “has championed negative liberties more than positive rights” – that is, on the one hand the Court requires the government to demonstrate a compelling state interest to interfere with an individual’s fundamental rights, such as a person having the right to privacy, or access to contraception, or the right to refuse life-saving treatment. But just one example of where the Court has shown its limits in health care rights is the Court’s 1977 decision in Maher v. Roe, where the majority held that the government could refuse to provide funding for abortions, ruling that while legal, abortion was not a positive health entitlement.
The resulting framework embodies a “quintessentially American contradiction” in health law, wherein Congress and other political institutions have implemented programs such as Medicaid, Medicare, and the Children’s Health Insurance Program to fulfill the public’s need for and access to so-called positive health care rights, and on the other hand judicially crafted constitutional doctrine favoring negative liberties, that “never aspired to and never could guarantee positive rights to health care, education, and other primary good that all Americans need to flourish,” the authors write.
These issues are called into high relief today as the Supreme Court will imminently decide a major challenge to the ACA in the case King v. Burwell, which has the potential to upend health care services for lower- and middle-income Americans in 30 states.
“Congress and other political institutions have recently stepped in to fill the void left by judicial doctrine in the area of positive rights to health care,” Ruger and his co-authors observe, and “ongoing judicial interference with positive rights extended by the political branches is especially problematic. Our Supreme Court is not the solution to what ails our health care system, nor should it be. But if it gets in the way of the ongoing and gradual democratic process of arriving at solutions, it is a major part of the problem.”