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Table Of Contents
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American Journal of Law & Medicine Volume 38, Numbers 2 & 3 * 2012. Symposium The American Right to Health: Constitutional, Statutory, and Contractual Healthcare Rights in the United States Symposium Authors: Lara Cartwright-Smith Nakku Chung Richard A. Epstein B. Jessie Hill Marshall B. Kapp David B. Kopel Gary Lawson Elizabeth Weeks Leonard Abigail R. Moncrieff David Orentlicher Jedediah Purdy Katherine L. Record Sara Rosenbaum Neil S. Siegel Paula M. Stannard Joel Teitelbaum Stacey A. Tovino Steven J. Willis Student Note Author Kyle Thomson
Constitutional Ratemaking and the Affordable Care Act: A New Source of Vulnerability
Richard A. Epstein, Paula M. Stannard - [PDF]

As this Article is being written, the Patient Protection and Affordable Care Act (ACA) is being besieged with two different types of challenges. The first is a Commerce Clause challenge to the individual mandate on the ground that, although the Commerce Clause allows the government to "regulate" the transactions into which people choose to enter, it does not allow the state to force people to enter into disadvantageous transactions against their own will. The second of these challenges deals with the imposition of the Medicaid expansion provisions requiring a state to forego all of its additional Medicaid support unless it is prepared to extend Medicaid coverage, partially at its own expense, to individuals whose income levels put them at 100% to 133% of the federal poverty level. The charge is that this requirement represents, through the use of inappropriate conditions, an impermissible compromise of state sovereignty by forcing states to make the choice of taking on the costs of new programs or losing their federal support for their present program.
The PPACA in Wonderland
Gary Lawson, David B. Kopel - [PDF]

On August 22, 2009, when then-Speaker of the House Nancy Pelosi was asked by a reporter whether the Patient Protection and Affordable Care Act (PPACA) was constitutional, she answered: "Are you serious? Are you serious?" Two years later, many federal judges, more than half of the States, and a flood of distinguished constitutional scholars have examined the PPACA and found at least part of it to be unconstitutional. The question was indeed serious.
Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and Beyond
Abigail R. Moncrieff - [PDF]

The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene-and ought to be constitutionally permitted to intervene-whenever the states are "separately incompetent" to regulate a particular subject. According to this view, the primary purpose of the Constitution's enumeration of national powers is to authorize Congress to fix collective action problems among the states. Borrowing from Robert Cooter and Neil Siegel's article of the same name, I refer to this view as "collective action federalism." On the otherside of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to this view, there is inherent value to state power that ought to be preserved against national encroachments. I refer to this view as "libertarian federalism." In the Obamacare litigation, believers in collective action federalism generally support the individual mandate while believers in libertarian federalism generally oppose it.
Rights to Healthcare in the United States: Inherently Unstable
David Orentlicher - [PDF]

Although international covenants have long recognized a fundamental right to healthcare, and other countries provide healthcare coverage for all of their citizens, rights to healthcare in the United States have been adopted only grudgingly, and in a manner that is inherently unstable. While a solid right to healthcare would provide much benefit to individuals and society, the political and judicial branches of the U.S. government have granted rights that are incomplete and vulnerable to erosion over time.
Translating Rights into Access: Language Access and the Affordable Care Act
Joel Teitelbaum, Lara Cartwright-Smith, Sara Rosenbaum - [PDF]

More than twenty-four million people in the United States are considered limited English proficient (LEP), and numerous studies have documented the consequences of communication barriers in healthcare. These consequences include: patients' inability to become engaged and involved in their care; the absence of crucial information-including cultural information-essential to healthcare quality; risks to patient safety arising from the misunderstanding of physician instructions; and ethical and legal lapses stemming from the absence of informed consent. Addressing healthcare rights necessarily entails coming to grips with how to facilitate communication and the exchange of information between the healthcare system and an increasingly diverse patient population.
The Liberty of Free Riders: The Minimum Coverage Provision, Mill's "Harm Principle," and American Social Morality
Jedediah Purdy, Neil S. Siegel - [PDF]

The Patient Protection and Affordable Care Act (ACA) requires most lawful residents of the United States to obtain a certain level of health insurance coverage (the minimum coverage provision) or pay a certain amount of money each year (the shared responsibility payment). Opponents of these provisions argue, among other things, that they are beyond the scope of Congress's power to regulate interstate commerce because they regulate inactivity (declining to purchase health insurance), as opposed to regulating economic activity. One of us has argued elsewhere that the constitutionality of the minimum coverage provision does not turn on whether Congress is regulating "inactivity"-that the distinction between inactivity and activity does not even partially define the limits of the Commerce Clause. Rather, as identified by the theory of collective action federalism, a better constitutional distinction is between problems whose solution requires individual action by states and problems whose solution requires collective action by states. This is a structurally sound way to impose some limits on the commerce power while justifying the outcomes in the cases cited by Judge Silberman in the quotation that begins this Article.
If We Can Force People to Purchase Health Insurance, Then Let's Force Them to Be Treated Too
Marshall B. Kapp - [PDF]

Proponents of the 2010 Patient Protection and Affordable Care Act (PPACA) justify the Act's mandate that uninsured individuals either purchase a minimally defined health insurance policy ("Maintain Minimum Essential Coverage") or pay a fine, as a necessary and proper exercise of Congress's express constitutional power to regulate interstate and foreign commerce. The United States Supreme Court will decide the correctness of that highly debatable position during its spring 2012 session.
Affordable Care Act Litigation: The Standing Paradox
Elizabeth Weeks Leonard - [PDF]

The Patient Protection and Affordable Care Act (ACA or the "Act") litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as to individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on the allocation of power between the federal government and the states. While states may have no greater claim to judicial review of federal laws than individuals, they should not have any less.
What Is the Meaning of Health? Constitutional Implications of Defining "Medical Necessity" and "Essential Health Benefits" Under the Affordable Care Act
B. Jessie Hill - [PDF]

When the government decides to assume a major role in providing and paying for healthcare, the government also has to decide exactly what constitutes appropriate, reasonable, or essential healthcare under its program. Congress, of course, recognized this necessity when it passed the Patient Protection and Affordable Care Act (ACA), and the statute itself provides authority to the Secretary of Health and Human Services (HHS) to determine the "essential health benefits" that must be covered under the ACA beginning in 2014, both by insurers offering plans within governmentally sponsored exchanges and on the individual and smallemployer markets outside the exchanges. In a decision that was hailed as both "politically astute" and problematic for the goals that the ACA itself was supposed to accomplish, HHS shunted off the task of defining the term "essential health benefits" to the individual states.
A Proposal for Comprehensive and Specific Essential Mental Health and Substance Use Disorder Benefits
Stacey A. Tovino - [PDF]

This Article analyzes the initial efforts of the Federal Department of Health and Human Services (HHS) to implement the essential mental health and substance use disorder services benefit required by section 1302(b)(1)(E) of the Affordable Care Act (ACA) and proposes the adoption of a comprehensive and specific essential mental health and substance use disorder benefit set. At a minimum, the benefit set should cover medically necessary and evidence-based inpatient and outpatient mental healthcare services, inpatient substance abuse detoxification services, inpatient and outpatient substance abuse rehabilitation services, emergency mental healthcare services, prescription drugs for mental health conditions, participation in psychiatric disease management programs, and community-based mental healthcare services.
No Healthcare Penalty? No Problem: No Due Process
Steven J. Willis, Nakku Chung - [PDF]

The Internal Revenue Service (IRS) has the power to assess and to collect the penalty for failing to have adequate health insurance. Unlike other taxes and penalties, the lack-of-health-insurance penalty has virtually no procedural protections for individuals subjected to it.
Litigating the ACA: Securing the Right to Health Within a Framework of Negative Rights
Katherine L. Record - [PDF]

President Obama entered the White House with a clearly defined goal: expanding healthcare coverage to all Americans. He marketed this goal to the public and Congress as a "moral imperative," as well as a necessary means to achieving a "more effective and efficient health care system." Yet as reform proceeded, it became clear that the latter was the preeminent, if not only, goal of most legislators. While the President's rhetoric was essential in drumming up support for historic reform, it reflects an appreciation for human rights that many Americans do not share. As Congress focused on the failings of the most expensive healthcare system in the world, it became evident that the right to health (a fundamental and nonderogable human right under international law) would not be a factor in the new legislation.
Notes and Comments
State-Run Insurance Exchanges in Federal Healthcare Reform: A Case Study in Dysfunctional Federalism
Kyle Thomson - [PDF]

On March 23, 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (ACA) into law, resulting in the most sweeping reform of the healthcare marketplace and one of the largest expansions in access to healthcare in American history. A key component to both restructuring the healthcare marketplace and improving access are the health insurance exchanges contained in the ACA. Today, individual and small group purchasers have difficulty finding affordable health insurance in the marketplace because they lack the tools to gather information about plans and because they lack the bargaining power to negotiate for affordable rates the way large purchasers can. In conjunction with the individual mandate, the health insurance exchanges aim to solve inefficiencies in the current marketplace by creating a centralized venue to connect insurers with individual and small business purchasers. Thus, it both creates a place for insurers to readily find customers, who are now guaranteed to be there because of the individual mandate, and provides a place for customers to shop for insurance. Rather than creating a national health exchange, and, in turn, a unified national insurance market, the ACA adopts a familiar federalist model that requires state-run exchanges to implement federal policy. This Note argues that the federalist structure of the insurance exchanges contained in the ACA is inefficient and ultimately self-defeating, both from a functional federalism perspective and because of the significant constitutional and political challenges it invites.