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Litigating the ACA: Securing the Right to Health within a Framework of Negative Rights

Published online by Cambridge University Press:  06 January 2021

Katherine L. Record*
Duke University; O'Neill Institute for National & Global Health Law; Health Law & Policy Clinic at the Legal Services Center of Harvard Law School


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.

This defining characteristic of reform may, paradoxically, prove invaluable in preserving the law. In challenging the Patient Protection and Affordable Care Act (ACA), litigators, politicians, and judges have focused on principles of federalism, asserting that Congress has overstepped its authority in enacting such landmark legislation. As opponents hone in on the insurance mandate and Medicaid expansion, they condemn the unprecedented expansion of coverage that moves America closer to realizing a universal right to health. The government has an extremely strong argument that these provisions are properly grounded within Congress’s authority to regulate commerce or within its taxing and spending power, although legal scholars differ on the Supreme Court’s projected interpretation of the matter. Still, the law’s basis in economic regulation, and not rights, will, if anything, prove to be its saving element.

Copyright © American Society of Law, Medicine and Ethics and Boston University 2012

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2 The ACA requires coverage to include a minimum set of healthcare benefits, to be defined by the Secretary of the Department of Health and Human Services. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1302(b), 124 Stat. 119, 163-65 (2010) (to be codified at 42 U.S.C. § 18022(b)).

3 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

4 E.g., Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, U.N. Doc. A/RES/45/158 (Dec. 18, 1990); Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (Nov. 20, 1989); Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, U.N. Doc. A/RES/34/180 (Dec. 18, 1979); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI) A, U.N. Doc. A/RES/2200(XXI) (Dec. 16, 1966); International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX) A, U.N. Doc. A/RES/2106(XX) (Dec. 21, 1965).

5 Requiring states parties to “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, supra note 4, at art. 12.

6 See, e.g., Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), Nov. 17, 1988, O.A.S.T.S. No. 69; African (Banjul) Charter on Human and Peoples’ Rights, June 27, 1981, 21 I.L.M. 58; European Social Charter, Oct. 18, 1961, 529 U.N.T.S. 89, E.T.S. No. 35.

7 See Office of the United Nations High Comm’r for Human Rights & World Health Org., The Right to Health: Fact Sheet No. 31 (June 2008), [hereinafter The Right to Health].

8 Purohit & Moore v. The Gambia, Commc’n No. 241/2001 (Afr. Comm’n on Human & Peoples’ Rights 2003).

9 Id.

10 In Ireland abortion is punishable by life in prison unless life of mother is at risk. Offences Against the Person Act, 1861, 24 & 25 Vict., c.100, § 58; Ir. Const., 1937, art. 40.3.3°.

11 A, B and C v. Ireland, App. No. 25579/05, [2010] Eur. Ct. H.R. 2032.

12 Approximately 115 national constitutions recognize a right to health. The Right to Health, supra note 7, at 10.

13 Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of Justice], 24/10/2000, “Campodónico de Beviacqua, Ana Carina c. Ministerio de Salud y Acción Social - Secretaría de Programas de Salud y Banco de Drogas Neoplásicas / recurso de hecho,” Colección Oficial de Fallos de la Corte Suprema de Justicia de la Nación [Fallos] (File C.823.XXXV).

14 For example, the court ordered the federal government and City of Buenos Aires to provide adequate treatment to a man suffering from congential paraparesis. CSJN, 12/7/2001, “Alvarez, Oscar Juan c. Buenos Aires, Provincia de / acción de amparo,” Fallos (2001-324-2042). In another case, the court found that the Ministry of Health violated a patient's right to health by failing to respond to her requests for an urgent pacemaker replacement that she could not afford. CSJN, 25/3/2003, “Díaz, Brígida c. Buenos Aires, Provincia de / amparo,” Fallos (File D.2031.XXXVIII).

15 Tribunal Supremo de Venezuela [Supreme Court of Venezuela], 15/7/1999, “Cruz del Valle Bermúdez c. Ministerio de Sanidad y Asistencia Social (MSAS) / amparo,” Expediente No. 15.789, Sentencia No. 196 (holding the Ministry of Health and Social Assistance in violation of the constitutional right to care by denying HIV-positive patients access to regular testing and treatment, and by failing to run public awareness campaigns on transmission risk and prevention).

16 Chaoulli v. Quebec (Att’y Gen.), [2005] 1 S.C.R. 791.

17 Despite the robust protection of the right to health provided by section 27, the court has been cautious in ruling against the government. When the court has ruled in favor of plaintiffs challenging a violation of a socioeconomic right, it has been resistant to direct or even oversee the government's implementation of its remedy, refusing to insist on timeframes and benchmarks of progress, which leaves rights largely illusory. See Davis, D.M., Adjudicating the Socio-Economic Rights in the South African Constitution: Towards ‘Deference Lite’?, 22 S. Afr. J. Hum. Rts. 301, 318 (2006)Google Scholar.

18 See id. at 323.

19 Government of the Republic of South Africa v. Grootboom 2000 (11) BCLR 1169 (CC) (S. Afr.) (state policies must be flexible and take into account the degree of need for housing and land).

20 See Mazibuko v. Treatment Action Campaign 2009 (4) SA 1 (CC) (city's cognizance of lack of access to water and efforts to improve access for the poor is sufficient—there is no violation of section 27 when government is taking active steps to secure right); Khosa v. Minister of Social Development 2004 (4) SA 1 (CC) (lack of citizenship is not reasonable grounds for denying socioeconomic rights but limited financial resources is a valid state defense); Soobramoney v. Minister of Health 1998 (1) SA 765 (CC) (state has duty to provide care to the degree resources allow).

21 Minister of Health v. Treatment Action Campaign (No.2) 2002 (5) SA 721 (CC).

22 Kinney, Eleanor D. & Alexander Clark, Brian, Provisions for Health and Health Care in the Constitutions of the Countries of the World, 37 Cornell Int’L L.J. 285, 299300 (2004)Google Scholar.

23 See Weeks Leonard, Elizabeth, State Constitutionalism and the Right to Health Care, 12 U. Pa. J. Const. L. 1325, 1331-32 (2009)Google Scholar.

24 In a natural language search performed on February 10, 2012 of “right to health” or “right to health care” or “right to healthcare” in LexisNexis, no Supreme Court opinion even referred to such a right. One opinion does reference a law review article in a footnote. The article's title includes the phrase “right to health.” O’Connor v. Donaldson, 422 U.S. 563, 584 n.5 (1975).

25 The Fourteenth Amendment protects the right to healthcare (including mental health) for those involuntarily committed by the state. Youngberg v. Romeo, 457 U.S. 307, 315 (1982). Prisoners are guaranteed access to care as well, but on different grounds: denying a prisoner healthcare constitutes cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

26 See, e.g., Maher v. Roe, 432 U.S. 464 (1977) (no duty to cover healthcare costs for the poor); DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989) (state has no duty to protect child from his abusive father—failure of social services to intervene is not actionable). Even the Fifth Amendment's equal protection clause does not preclude a state from shutting down the only clinic in a low-income neighborhood. Spivey v. Barry, 665 F.2d 1222, 1235-36 (D.C. Cir. 1981). The same is true of due process—it is not considered an unconstitutional deprivation of life, liberty, or property for an individual to live in a society in which he or she cannot access necessary treatment. Webster v. Reprod. Health Servs., 492 U.S. 490, 507 (1989). This is subject to cases of emergency, in which a hospital must provide treatment but is entitled to bill the patient subsequently. Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (2006).

27 Congress could repeal either, leaving beneficiaries no judicial recourse. See TIMOTHY STOLTZFUS JOST, DISENTITLEMENT? THE THREATS FACING OUR PUBLIC HEALTH-CARE PROGRAMS AND A RIGHTS-BASED RESPONSE 30-33 (2004); see also Harris v. James, 127 F.3d 993, 1009-10 (11th Cir. 1997) (finding that Medicaid creates only a generalized duty on states to provide coverage to beneficiaries, but not a federal right enforceable under 42 U.S.C. § 1983 (2006)).

28 Sebastain v. United States, 185 F.3d 1368, 1372 (Fed. Cir. 1999).

29 Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2nd Cir. 2009) (Nigerian plaintiffs may file suit against private actor (drug company) for violation of right to be free from nonconsensual medical experimentation by subjecting children to experimental antibiotic without their knowledge).

30 Flores v. S. Peru Copper Corp. 414 F.3d 233, 254 (2nd Cir. 2003) (Peruvian residents suffering from lung disease as a result of American mining company's pollutants lack subject matter jurisdiction to sue under the Alien Tort Claims Act, 28 U.S.C. § 1350, because of lack of violation of a recognizable right); see also Viet. Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 123 (2nd Cir. 2007) (Vietnamese residents harmed by an herbicide used by the United States in the Vietnam War cannot seek relief from chemical manufacturer because the right to health is not actionable).

31 See cases cited supra note 30.

32 Note that if the Court decides to apply the Anti-Injunction Act, 26 U.S.C. § 7421 (2006), as both parties have asked it to consider, it will not hear the matter until at least 2015 (when a tax is first assessed in connection with the mandate). This could create variation in state compliance with the ACA, as varying leaderships decide whether or not the law will or should govern. As the petitioners have described it: “States need to know whether they must adapt their policies to deal with the brave new world ushered in by the ACA.” Petition for Writ of Certiorari at 2, Florida v. U.S. Dep't of Health & Human Servs., No. 11-400, (U.S. Sept. 27, 2011), 2011 WL 4500702, cert. granted in part 132 S. Ct. 604 (2011) (mem.) (argued Mar. 28, 2012) [hereinafter Petition for Certiorari, No. 11-400].

33 Striking down the mandate would leave sixteen million additional Americans uninsured in 2019, according to the Congressional Budget Office. Petition for a Writ of Certiorari at 23, U.S. Dep't of Health & Human Servs. v. Florida, No. 11-398 (U.S. Sept. 28, 2011), 2011 WL 5025286, cert granted 132 S. Ct. 604 (2011) (mem.) (argued Mar. 26-27, 2012) [hereinafter Petition for Certiorari, No. 11-398].

34 See, e.g., N.J. Physicians, Inc. v. Obama, 757 F. Supp. 2d 502, 504 (D.N.J. 2010), aff’d, 653 F.3d 234 (3d Cir. 2011) (“[T]he purpose of the Act is to provide affordable health insurance, and to reduce the number of uninsured Americans,” and the purpose of the mandate is to deter individuals from waiting “to purchase health insurance until they needed care.”); Shreeve v. Obama, No. 1:10- CV-71, 2010 WL 4628177, at *1 (E.D. Tenn. Nov. 4, 2010) (the ACA is designed to “regulate interstate markets in the health care industry”).

35 The government argues that the controversial mandate falls strictly under its Article I authority and that the expansion of Medicaid “does not differ materially from the structure of the prior Medicaid amendments extending eligibility to recipients of Supplemental Security Income in 1972 and to low-income pregnant women and children under age six in 1989.”

Consolidated Brief for Respondents at 17, Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393, and Florida v. Dep't of Health & Human Servs., No. 11-400 (U.S. Oct. 17, 2011), 2011 WL 4941020; see also id. at 9 (“No court has ever invalidated a federal funding condition on the coercion theory the state petitioners urge here.”). Moreover, the government has described the problems driving the ACA as strictly market-based (an “enduring crisis in the market for health care”) and points to the regulatory nature of the law as a solution. Petition for Certiorari, No. 11-398, supra note 33, at 2-3.

36 See, e.g., Petition for Certiorari, No. 11-398, supra note 33, at 6, 17 (“[M]illions of Americans do not have health insurance, either public or private, and instead attempt to self-insure. They actively participate in the health care market regardless of their ability to pay. When people ‘forego health insurance coverage and attempt to self-insure,’ they typically fail to pay the full cost of the services they consume, and they shift the costs of their uncompensated care—totaling $43 billion in 2008—to health care providers… . On average, the uninsured pay only 37% of their health care costs out of pocket, and third parties, such as government programs and charities, pay another 26% on their behalf.”).

37 Id. at 3 (“[T]he Act builds upon the existing nationwide system of employer-based health insurance that is the principal private mechanism for financing health care.”).

38 Those challenging the law argue that the individual mandate exceeds Congress's Article I authority, whereas the government argues that it falls well within either this authority or its authority to tax and spend. See, e.g., id. at 21 (citations omitted) (“Because of human susceptibility to disease and accident, we are all ‘never more than an instant’ from the ‘point of consumption’ of health care. Nothing in the Commerce Clause requires Congress to withhold federal regulation until that moment.”); id. at 4 (“[T]he Act amends the Internal Revenue Code to provide that a non-exempted individual who fails to maintain a minimum level of health insurance must pay a tax penalty.”). Opponents argue that prior use of the word “penalty” in place of “tax” in the legislative history of the law demonstrates that the mandate does not fall within the taxing and spending power. Brief for State Respondents on the Anti-Injunction Act at 48-51, U.S. Dep't of Health & Human Servs., No. 11-398 (U.S. Feb. 6, 2012).

39 Petition for Certiorari, No. 11-400, supra note 32, at 6.


41 The ACA removes the state right to provide Medicaid beneficiaries with lower levels of benefits than that of private coverage. Patient Protection and Affordable Care Act, Pub. L. No. 111- 148, § 2001(a)(2), 124 Stat. 119, 271-72 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (to be codified primarily in scattered sections of 42 U.S.C.) (amending the Social Security Act).

42 In an executive order released immediately after the passage of the ACA, President Obama assured that the Hyde Amendment remained in full force and that federal funds would not be used to match any Medicaid spending on even medically necessary abortions, except for those necessary to save the life of the mother or in the case of an immediately reported case of rape or incest. See Exec. Order No. 13,535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).

43 Challenges claim that the mandate violates the right to privacy, liberty, free exercise, property, and a solvent government. See, e.g., Brief for Private Respondents on the Individual Mandate at 12- 14, U.S. Dep't of Health & Human Servs., No. 11-398 (U.S. Feb. 6, 2012), 2012 WL 379586; Brief Amicus Curiae of the Independent Women's Forum in Support of Respondents (Individual Mandate) at 16-29, U.S. Dep't of Health & Human Servs., No. 11-398 (U.S. Feb. 13, 2011), 2012 WL 504610.

44 Strangely, those challenging the law argue that uninsured individuals are not market participants, even “strangers” to the healthcare market, as if there were a class of human beings invincible from physical or mental illness or injury. See Brief in Response for Private Respondents at 6, U.S. Dep't of Health & Human Servs., No. 11-398 (Oct. 14, 2011), 2011 WL 4874089. Indeed, the opponents make a bizarre analogy between uninsured individuals and teetotallers, who make the conscious decision to abstain from alcohol consumption. Id. at 7. The Court has been clear that Commerce Clause authority encompasses the power to regulate activity that is but a step away from the market. See Gonzales v. Raich, 545 U.S. 1 (2005).

45 Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 771 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11- 420).

46 First Amended Petition for Injunctive and Declaratory Relief at 10, Bryant v. Holder, 809 F. Supp. 2d 563 (S.D. Miss. Apr. 9, 2010) (No. 2:10-CV-76-KS-MTP) (quoting New York v. United States, 505 U.S. 144, 187 (1992)).

47 Complaint at 2, Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. Mar. 23, 2010) (No. 10-CV-11156), aff’d, 651 F.3d 529 (6th Cir. 2011), petition for cert. filed, (U.S. July 26, 2011) (No. 11-117).

48 States challenging the law use dramatic language to characterize its reach as unprecedented and alarming, even “breathtaking.” Brief for State Respondents at 9, U.S. Dep't of Health & Human Servs., No. 11-398 (U.S. Oct. 17, 2011), 2011 WL 5007904. For example, in their brief filed in response to the government's petition for certiorari, the respondents assert to the Court that upholding the individual mandate would empower Congress to “compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.” Id. (emphasis added) (citation omitted). The private parties challenging the law similarly characterize the mandate as an extraordinary expansion of federal power, arguing that “if Congress can … compel the purchase of health insurance, then it has the plenary power to compel any product purchase, because there is nothing constitutionally unique about health insurance.” Brief in Response for Private Respondents, supra note 44, at 3.

49 See Virginia ex rel. Cuccinelli, 728 F. Supp. 2d at 772.

50 See Response/Reply Brief for Appellant at 25-34, Virginia ex rel. Cuccinelli, 656 F.3d 253, Nos. 11-1057, 11-1058 (4th Cir. Apr. 8, 2011), 2011 WL 1338077.

51 Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012) (upholding expansion of Medicaid under the Tenth Amendment on grounds that federal funding for the initial implementation of the law provides states with sufficient time to adjust such that the change would not infringe on state sovereignty).

52 The federal government has changed the requirements that states must abide by to receive Federal Medicaid funding several times. Between the program's inception and 2008, enrollees increased by over forty-three million. Consolidated Brief for Respondents, supra note 35, at 12, 17 (noting that “each State has signed a Medicaid plan that includes an express statement that the plan ‘will be amended whenever necessary to reflect new or revised Federal statutes,’” and that “the structure of the Affordable Care Act amendments to Medicaid does not differ materially from the structure of the prior Medicaid amendments extending eligibility [in the past]”).

53 When South Dakota challenged the federal provision requiring states to increase the legal drinking age to twenty-one years in order to receive federal highway funding, the Court upheld the provision but suggested that the power is not unlimited. South Dakota v. Dole, 483 U.S. 203, 211-12 (1987).

54 See Petition for Certiorari, No. 11-400, supra note 32, at 7 (“Unlike when it has amended Medicaid in the past, Congress did not tie its new conditions only to those additional federal funds made newly available under the ACA. It instead made the new terms a condition of continued participation in Medicaid, thereby threatening each State with the loss of all federal Medicaid funds – on average, more than a billion dollars per year – unless it adopts the Act's substantial expansions of state obligations.”).

55 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 2001(a)(3), 124 Stat. 119, 272 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (to be codified primarily in scattered sections of 42 U.S.C.).

56 See Dole, 483 U.S. at 207-08

57 See, e.g., Baldwin v. Sebelius, 654 F.3d 877 (9th Cir. 2011), cert. denied, 131 S. Ct. 573 (2010); N.J. Physicians, Inc. v. President of the United States, 653 F.3d 234 (3d Cir. 2011).

58 See Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11- 420); Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla.), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla.), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012).

59 Compare Florida ex rel. Att’y Gen., 648 F.3d 1235 (overturning the law), with Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011), petition for cert. filed, (U.S. July 26, 2011) (No. 11- 117) (upholding the law, both on commerce clause grounds).

60 Compare Florida ex rel. Att’y Gen., 780 F. Supp. 2d at 1304-05 (striking down the law in its entirety), with Florida ex rel. Att’y Gen., 648 F.3d at 1321-23 (finding mandate to be severable).

61 This may or may not hold true for advancing access to food, shelter, education, and safe neighborhoods as well, all of which are equally, if not more, important for securing a universal right to health as is healthcare. This, however, is beyond the scope of this Article, which focuses solely on the ACA and its relationship with the right to health.