American Journal of Law & Medicine

Are We Suffering from an Undiagnosed Health Right?

"[T]he assumption that rights are in this sense natural is simply one assumption to be made and examined for its power to unite and explain our political convictions, one basic programmatic decision to submit to this test of coherence and experience. " (1)  INTRODUCTION                                                       744    I. THE NATURE OF RIGHTS, THE NATURE OF HEALTH                   748       A. WHAT IS A RIGHT?                                          750          1. Relaxing Certain Parameters                            750          2. Prima Facie Case: Trumping of Categories          Internally Connected to Health Need                       753       B. HEALTH CAST AS A RIGHT                                    755          1. Definitions of "Health"                                755          2. Terminology of a "Right to Health"                     755          3. Some Features of Health as a Social Good               756          4. Determining What is in the Right to Health?            759   II. TESTING IMPLICIT HEALTH RIGHTS HYPOTHESIS FOR EXPLANATORY    VALUE                                                           759       A. REVIEWING THE POLICY-ABSOLUTISM PIECE                     760          1. Definition of "Striking-for-Underinclusion"            760          2. Three Administrative Law Cases                         760          3. Widening the Lens                                      761       B. TOBACCO                                                   763          1. FDA v. Brown & Williamson                              763          2. Lorillard Tobacco Co. v. Reilly                        767       C. AFFORDABLE CARE ACT                                       770          1. Florida v. HHS: The Individual Mandate                 770          2. NFIB v. Sebelius: Medicaid Spending Coercion           774       D. REPRODUCTIVE/GENDER/SEXUAL HEALTH                         782          1. Coverage for Abortion                                  782          2. Transition Care                                        784  III. ANSWERING THE OBJECTIONS                                     787       A. Is IT FORMAL EQUALITY?                                    787          1. Formal Equality Depends on a Substantive Right         787          2. Why Do Judges Accept Leveling Down: The          Particularism of Health Continued                         788          3. The Particularism of Health: Explains Why Formal          Equality is Unworkable                                    789       B. IS IT COUNTERRIGHTS?                                      789       C. Is IT ROOTING OUT PRETEXT?                                790   IV. CONNECTIONS TO THE RIGHTS CRITIQUE                           791       A. RIGHTS ARE LEGITIMATING                                   791       B. A NEW FACE OF THE CRITIQUE: IMPLICIT RIGHTS               792          1. Implicit Rights Expectation as a Policy          Handicap, Holding Health Measures to Higher          Enactment Cost Hurdles                                    792          2. Empowers Opponents Over Beneficiaries of          Health Protections                                        793          3. Turns Against Health Measures, Rather than          Shielding Health from Non-Health Policies                 793          4. Judicial Conception Cannot be Contested or Contoured   793  CONCLUSION                                                        794 

INTRODUCTION

Some of the United States' most significant health policies have been defeated, paradoxically because they did not go far enough to protect health. In FDA v. Brown & Williamson, the Food and Drug Administration's (FDA) tobacco rule was struck in part because it curbed tobacco marketing to minors rather than banning tobacco from the market for everyone. (2) In Lorillard v. Reilly, Massachusetts shielded children from tobacco advertising in neighborhood retail stores, but only inside a five-foot-from-the-ground buffer zone. (3) This limited ban violated the First Amendment not because it failed to protect enough speech, but because it failed to protect the health of children taller than five feet. (4) In the Eleventh Circuit case culminating in NFIB v. Sebelius, the Patient Protection and Affordable Care Act's (ACA) individual mandate fell outside Congress' Necessary and Proper power because it did not go far enough: it exempted certain immigrants and people facing economic hardship, thereby failing the constitutional fit test. (5) Finally, the NFIB Medicaid ruling proclaimed the new eligibility expansion covering all residents under 133% of the federal poverty level unconstitutional because it carved non-expansion states out from the entitlement to "old Medicaid funding." (6) It thus left key state health interests unprotected. (7)

There is an irony to each of these cases, where the courts' solicitude for health condemns our most prominent efforts to advance health. This article offers to explain why. A similar self-defeating quality has been attributed to rights, which can actually frustrate the causes they claim to protect. (8) What is this irony doing in health law cases, especially since the U.S. legal system generally spurns rights to health? (9) What health rights we have fashioned are largely products of discretionary legislation or contract, and the justiciability of these rights has been uneven at best. (10) Even in those jurisdictions where state constitutions mention health-related matters, courts embrace health rights only haltingly. (11) Yet I argue that courts are, unnoticed and unannounced, already employing a conception of the right to health when deciding major cases.

In the health cases mentioned above, one sees courts impose an implicit conception of the "right to health" (12) to evaluate and critique government efforts to pursue health, even if those same courts shy away from overtly affirming any particular substantive content to or vision of that right. They assume that "health," though hard to define, should be treated, if not as absolute, at least as a qualitatively "prioritized" value, rather than as some other type of political norm subject to ordinary trade-offs or balancing. (13) As we will see, Ronald Dworkin claims that rights exist precisely in order to achieve this type of prioritization or "trumping." (14) Yet this judicial presumption that health should be treated as a right perversely leads to the invalidation of our collective efforts to promote and protect health. This article shows how major health law jurisprudence displays the perversity of rights discourse, as predicted by the rights critique.

How can I claim that courts treat health in a rights-like fashion, especially when U.S. law is notoriously hostile to health rights? In fact, courts' resistance to acknowledging rights to specific health goods or services is so strong that they often avoid, or even actively impede, the specification of what is provided under such a right. (15) Yet, I show that courts in these casesstill hinge their reasoning on a de facto conception of a health right, against which health policies are measured for validity. My methodology proceeds with a textual argument and simultaneous implicit structural pattern argument, explained below.

In Part I, using Ronald Dworkin's account of rights, I identify two characteristics of rights as distinct from other political values--namely, rights' individuated or distributed quality, and second, rights' "trumping" character which allows them to preclude certain countervailing justifications for reasons internal to the right itself. I also describe the particular, constructed, and evolving nature of health as a social good to foreshadow the difficulties of mapping formal rights features onto substantive health terrain.

Then in Part II, I test the implicit right to health hypothesis for explanatory power. I identify two areas of controversy in health law - tobacco and the ACA - and show how the judges use Dworkin's two distinctive rights' features to decide case outcomes. When invalidating tobacco and ACA health measures, judicial reasoning rests on the assumption that health values have a distributed nature and a trumping character. Indeed the set of "sensitive" considerations, whose use to limit health protection is condemned in these cases (age, physical characteristics, immigration status, socioeconomic disadvantage, and status as "the neediest among us,") are plausibly explained insofar as they conflict "internally" with the reasons we value health in the first place. Thus, under Dworkin's account of rights, health limits based on these factors would be subject to "trumping," or lexical preclusion. (16) This argument is the textual side of my case, examining opinions for evidence of rights grammar.

Yet judges do not acknowledge their treatment of health as a right. They disclaim an overt role in specifying not only who qualifies for the right, but which sticks belong in the health right bundle. (17) Courts, perhaps confounded by the nature of health as a social good, balk at affirming substantive health protections that the government must provide and thus allow policymakers to revert to no provision at all. Given the troubled interface of health and rights, courts force all-or-nothing outcomes, which might at first seem inconsistent with judges harboring some implicit conception of a health right.

Thus, in Part II, I proceed to examine a counter-example, namely, cases concerning sexual, gender-related, and reproductive health, where rights-derived arguments about the individuated and preclusive nature of health values are considered but rejected by courts. This differential treatment of sexual health protections, as compared to tobacco regulation, or ACA-related measures, reveals that judges place these sex, gender, and reproductive health services outside the domain of what they regard in a rights-like fashion. (1) Much as courts may deny that they are specifying the content of health rights, they are inevitably drawing lines around the scope of the right by picking and choosing which health provisions are scrutinized for under-protecting health. They are also outlining a de facto conception of who qualifies for (or at least who shouldn't be disqualified from) the right by defining the "suspect" categories that they disfavor. This argument is the structural pattern argument, that judicial delineation of a rights conception is unavoidable because judges' choices outline a pattern with the structure of a right.

These propositions may seem far-fetched. (19) In Part III, I address some of what I see as the main rejoinders, principally what I see as the faulty argument that formal equality is the principle at work here, that counterrights are to blame in these cases, or that courts are just smoking out pretextual motives. In Part IV, I discuss how my implicit rights explanation comports with and extends the rights critique literature that predicts the perverse effect of rights discourse.

This project seeks to widen the field of possible explanations. I ask the reader to consider the explanatory value, and paradoxical consequences, of a hypothesized health right. Other scholars have sought to explain health jurisprudence by postulating a Lochner-style or libertarian right to bodily autonomy operating in these health cases. (20) Indeed the "ideological" nature of health decisions has caused significant concern if not outrage in the field. As Abigail Moncrieff points out, "the importation of libertarian norms into structural analyses... is the feature of the ACA litigation that has proven most rankling to the legal academy." (21) This article, while agreeing that norms have been "imported" into the "structural analyses," (22) seeks to disrupt the false necessity of the libertarian background norms. There are other strands of thinking within our jurisprudential inheritance available for extrapolation, even if we restrict ourselves solely to negative rather than positive rights. (23) The neoliberal account is not the only story we can tell about ourselves. If we wish to postulate background rights to map health law terrain, we have a wider range of political options to choose from and possibly reconstruct. (24)

I. THE NATURE OF RIGHTS, THE NATURE OF HEALTH

What is health, what are rights, and do they mix in our legal system? The United States is one of a small minority of countries where health is not enshrined in the constitution. (25) Although Congress has broad powers to create statutory entitlements through regulation of commerce, the Necessary and Proper Clause, and the power to tax and spend, health has traditionally been left to state actors exercising their police powers. (26) The United States has notoriously refused to ratify the International Convention of Economic, Social and Cultural Rights (ICESCR), Article 12 of which imposes upon Member States the duty to "recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." (27) In 2010, the United States enacted the ACA, (28) which health policy experts complain affords only incomplete rights to means-tested tax credits and nondiscrimination in the health insurance market. (29) Indeed, the ACA grandfathers noncompliant plans, (30) preserves significant state latitude over insurance, (31) excludes undocumented immigrants, (32) and was always expected to leave twenty to thirty million Americans uninsured. (33) Perhaps the strongest "right" originally included in the ACA stemmed from the "mandatory" Medicaid eligibility of individuals up to 133% of poverty as a condition of operating a state Medicaid program. (34) Yet, the Supreme Court has re-interpreted this provision to allow states to opt out of extending Medicaid coverage to low-income childless adults. (35)

A. WHAT IS A RIGHT?

1. Relaxing Certain Parameters

Though there may be more demanding definitions of the term, "right," my usage is well within the conventional range. (36) I follow colloquial use, and many other scholars, in including what might also be understood as liberties, immunities, and even powers, as the distinctions are disputed anyway. (37)

a. Dworkin 's Account of Rights

More specifically my use relies upon Ronald Dworkin's account of rights, which he describes as "individuated" social norms of such force that they "trump" ordinary background justifications. (38) Indeed rights are not simply weighed together with all other considerations because they exist precisely in order to preclude certain ordinary background considerations from determining results. (39)

Dworkin's rights thus have some distinguishing features as compared to other types of norms: (1) the right is necessarily distributed, or individuated and (2) rights trump certain countervailing justifications for reasons internal to the right. (40)

i. Distributed Nature of Rights

The distributed nature of Dworkin's rights is related to, but not as stringent as the "claiming" feature some ascribe to rights. (41) Dworkin says: "A political right is an individuated political aim." (42) This is because, for Dworkin, the right redounds to some person. (43) However, he recognizes group as well as individual rights. (44) This extension of the rights concept for him arises from the fact that communities often recognize groups as "legal persons." (45)

In Dworkin's elaboration of the rights thesis, rights are distinct from policy goals because they are what are owed to a person (legal or natural) as a result of the fair application of principle, which requires some consistency or generality in treatment. (46) Thus the value, unlike utility, cannot be aggregative. (47) Whenever one case is treated inconsistently, the norm is violated, regardless of the extent to which the norm is served otherwise. In contrast to these principled rights, "policies are propositions that describe goals." (48) Dworkin believes that policies can be traded-off against one another while rights are not similarly defeasible. (49) "Policy arguments in [Dworkin's] usage, presuppose the legitimacy of sacrificing individual to collective interests... [i.e.] utilitarian or social welfare policy...." (50) The point is that unlike policies, where any degree of fulfillment promotes the value while not being required by it, or alternatively, where there may be some critical threshold of provision that suffices, principled rights have an inherently distributed, individuated aspect." Dworkin himself illustrates this by using a health-related example: In confronting each individual to whom the right of contraceptive availability may apply, Dworkin argues that we "cannot say that the first decision gave the community just the amount of sexual liberty it needed, so that no more is required at the time of the second." (52)

ii. Trumps: Precluding Ordinary Justification

But conflicts between rights and goals, or between rights and rights, are inevitable. (53) Then to what degree does the right prevail? This brings us back to the other distinctive characteristic of rights: their "trumping" feature. Despite what this term might suggest, for Dworkin, rights do not always trump. Sometimes, there may be extraordinarily strong justifications to the contrary, which Dworkin acknowledges can overcome the right. (54) But the strength of the contrary justification lies not just in the weight, but also in the nature of the justification for action detracting from the right. There is often an internal relationship between the right and the insufficiency of certain countervailing reasons, given that the purpose of ruling out those justifications is why the right exists. (55) Simply balancing everyone's interests is not sufficient for the task of resolving conflicts in society because some people's interests, such as the Nazis' preference for the oppression of Jewish people, must be precluded, and rights (in this case the right to political independence) are the tools for barring consideration of those preferences. (56) Waldron further explains Dworkin's notion of trumping by using the example of how speech rights prevail over a listener's disutility from disagreement with the speech. The whole point of speech rights, he argues, is that the discomfort of hearing something one disagrees with should not count as a reason to curtail speech. (57)

Waldron explains how Dworkin's account of "rights as trumps" supplies a method of prioritization other than mere "balancing" to resolve value conflict:

What looked like a brute confrontation between two rival interests, independently understood, turns out to be resolved by considering the internal relation that obtains between our understanding of the respective rights claims. The establishment of this sort of internal relation between moral considerations is an attractive way of justifying claims about lexical priority. Instead of announcing peremptorily that a certain interest just has absolute priority over some other interest ranked lower than it, we express our sense of a particular priority in our conception of the interest itself. In thinking about it. and singling it out for moral attention, we are already thinking about the type of consideration with which it is likely to conflict. (58) 

The whole point of having a right to political independence or equality is precisely to preclude a Nazi sympathizer's invidious preference from counting validly against the Jewish individual's preference for her own civil and political equality. We prioritize one of those interests as a right, and in doing so, reject the other as a legitimate countervailing factor.

Thus, the distinctive trumping property of rights is best understood not as a generalized trumping, but as preclusion of particular justifications identifiable because of the "internally" contradictory relationship they have with the reasons we value the right. The Dworkin-Waldron internal preclusion account distinguishes rights as norms by identifying them as arguments of "qualitative precedence rather than quantitative weight." (59)

2. Prima Facie Case: Trumping of Categories Internally Connected to Health Need

Across the cases I examine, this logic, sometimes correctly and sometimes mistakenly applied, underlies the judicial hostility toward exceptions accommodating non-health values. To the extent that certain factors correlate with health needs, the protection of health, if understood as a right, should preclude the use of those factors as justifications for exclusion from or compromise of the health protection in any given instance. The judges in these illustrative cases appear receptive to this argument and use it to strike "compromise" health measures, even when the aggregate health effects of those measures are attractive. We will see that the cases I examine, brought to contest health measures regulating tobacco as well as health measures under the Affordable Care Act, can be understood in this manner. The "compromise" health measures that were struck in these cases carved-out or trimmed-back health protections based on how excluded groups were differently situated with respect to age, physical endowment, diagnosis, socioeconomic characteristics, and status as "the neediest among us." (60) What is noteworthy about these judicially disfavored categories of exclusion is that each of them can be considered an imperfect proxy for vulnerability or health need. In other words, these cases reveal that judges push back when policymakers limit a health provision based on these categories. This judicial resistance is plausibly consistent with a family of what scholars have observed to be deep norms regarding health. According to those norms, the special moral importance of health is inconsistent wih cost or burden of health need as sufficient justification on its own for denying help. (61)

By contrast, in abortion funding cases, ordinary countervailing reasons were permitted. Indeed, courts repeatedly declare that any political preference for childbirth is sufficient to overcome the claims to even-handed funding for services, whether the pregnancy was carried to term or not. (62) In sex-reassignment cases, courts also reject the underlying excluded benefit category as constituting a health need, or coinciding with diagnosis. Courts thereby refused to classify such decisions as an internally contradictory or sensitive category to use for exclusion. (63)

Courts are defining which traits and circumstances qualify a person for health protection by means of declaring which properties cannot be used to disqualify someone. Furthermore, by selecting the health measures to subject to this scrutiny, they are picking and choosing the treatments that belong in the scope of the right. They are, therefore, defining a right.

Certainly judges are often "wrong," and wrong in both directions: sometimes the countervailing condition justifying a carve-out should be permitted, even as sometimes it should be precluded. The likelihood and type of error suggest that judges should not develop a conception of health rights sub rosa without subjecting that conception to the daily granular processes of ordinary health decision-making in the field.

a. Positive Rights v. Negative Rights

It is often said that in the United States, we have a tradition of negative liberties rather than positive rights, (64) and this may explain why no right to health takes root here. (65)

After all, a substantial part of the dispute over health rights concerns the resources that can be required to realize these rights. Many have shown that the difference between so-called positive and negative rights is exaggerated, if not incoherent, since negative rights impose costs as well. (66) Nevertheless health rights, when they involve claims to resources, do raise particular budgetary concerns. Health-related goods and services are distinctive insofar as their costs are uncertain and almost limitless. (67) Because of these high costs and health's status as an existential predicate to all other goods, health poses a distinctive danger of too expansive a claim on social resources. (68)

While it is certainly true that my example cases involve judges employing this hypothesized health right as a "negative right," i.e. one that prevents state action that excludes certain groups, rather than requiring action such as provision to all, the chief problem is not just that in these cases, the covert health right is deployed as a negative right. Indeed, there are instances where a well-specified negative right, such as a right to a health impact assessment before non-health sector state action occurs, would be welcome, yet is not invoked. (69) Some federal and state laws serve as examples that we could build on in strengthening such negative health rights. (70) Unfortunately, courts today overwhelmingly block only "health" policies when they fall short in protecting health.

B. HEALTH CAST AS A RIGHT

1. Definitions of "Health"

Health is a deeply contested term. Many scholars in studying and measuring health speak of narrower, biomedical definitions, such as avoidable morbidity or mortality, (71) or absence of "deviations from the natural functional organization of a typical member of a species." (72)

By contrast, the World Health Organization (WHO) defines health as a "state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." (73) Indeed, others have noted that health could be construed so capaciously as to include all aspects of collective and individual quality of life. (74) Wendy Parmet has argued persuasively that the well-being of the community is a health norm and, indeed, an underrecognized legal norm. (75)

These and other robust conceptions of health are persuasive, generative, attractive, and I do not contest them here. (76) But as a descriptive matter, I do not claim that current law reflects rights to health so amply defined. Nevertheless, judges, at a minimum, seem to be sensitive to existential calamity or suffering when it is plausibly a matter of circumstance, not choice. (77) This statement delineates a reasonable conception of health, the courts' implicit conception, even if it is too cramped for my taste. (78)

2. Terminology of a "Right to Health"

Following Norman Daniels, I will be referring to the "health" to which one has a right as a shorthand for "health services" rather than health outcomes. (79) However, Daniels includes not just typical medical care or service under that heading, but also preventive services and even change in social conditions. (80) 1, like Daniels, recognize the scope of care broadly. Daniels says: "the reference to health should be construed as a handy way to characterize functionally the relevant, socially controllable actions, namely those that affect population health and its distribution." (81) This definition notably emphasizes the continuities, rather than the differences, between healthcare and public health as I will strive to do here as well.

The provisional working articulation of the judicial health rights conception in these cases is the mutual right to some measure of health service (socially controllable action) in recognition of those aspects of human vulnerability and suffering (82) that defy justification, desert, and autonomous control. (83) The health rights I allege in the cases here express this underlying norm about a person's baseline worth at the moment of vulnerability, and our beliefs about how it should be shielded from utilitarian reduction. (84)

3. Some Features of Health as a Social Good Is health as a social good amenable to a rights framework?

a. The Unavoidable Particularism of Health

What it means to have a right to health is too vague unless the actions and services included are further specified. (85)

But identifying the specific sticks that belong in the bundle is difficult. (86) Health resists codification. (87) Recognizing equal worth and vulnerability often requires acknowledgment of a person's particularity. The logic of medical treatment at least is profoundly particularized. The defining norm of medical practice is that a physician's primary moral responsibility is to the individual patient. (88) It is therefore difficult to reconcile a practice grounded in this particularized norm to the legal norms of articulated consistency.

Differential need must be considered in health decisions. As Dworkin writes: "If I have two children, and one is dying from a disease that is making the other uncomfortable, I do not show equal concern if I flip a coin to decide which should have the remaining dose of a drug. This example shows that the right to treatment as an equal is fundamental, and the right to equal treatment derivative." (89)

Moreover, individuals' health preferences may be different, and it might be difficult to distinguish preference from need. Some patients may choose aggressive end-of-life treatment, while others choose a less interventionist approach. (90) As Jennifer Prah Ruger notes, "[H]ealth and health capabilities are multidimensional concepts about which different people have different and sometimes conflicting views. No unique view of health exists as the ideal for all evaluations of a right to health." (91)

Moreover, a significant portion of what any person has a right to under the label "health" is also, irreducibly, a right to care:

Much of medicine is of this rational quality, but [this account ignores] an essential nonrational component of medicine.... This essential component is the mystical power of healing.... [This healing] is the dimension of doctoring that enables physicians to confer relief through spiritual or emotional means akin to those used by parents or priests. (92) 

Observers note that "[a] truly care-based model resists codification.... [Questions would be evaluated] in light of each participant's social and economic situation.... The assessment would therefore be different for a head of household or family breadwinner than for a child.... [It] would consider the potential toxicity... logistical difficulties... and social hardships." (93)

Thus medical practice can be more art than science. Clinical guidelines do not speak to the appropriateness of their own application in any given case, because they cannot exhaustively consider the constellations of subpopulation characteristics, co-morbidities, histories, locations, and other circumstances of any particular patient.

b. The Unavoidably Constructed Nature of Health

The most biomedical definition of health still relies on the notion of "normal" functions, and "the questions of whether the capacity to stay focused in a classroom or to see well at night are [part of normal functioning and] depend[]... on what is expected in a given society of people and their interactions with their environment." (95)

The definition of health is socially contingent. While it is not elastic enough to cover any unwanted condition, some non-pathological conditions are included while others are not. For instance, cosmetic surgery may function to correct unwanted conditions, but we typically do not regard cosmetic surgery as a "health" need. (96) By contrast, "[w]hen women seek to terminate unwanted pregnancies... they do not speak of their pregnancy as a disease or a pathological condition... [yet] [m]ost private American insurance... recognizes an important difference between nontherapeutic abortions and cosmetic surgery." (97)

Moreover, our notions of disease or illness depend upon conceptions of "fault" and "responsibility." Illness is a social role, one recognized as "deserving special treatment and diminished moral accountability." (98) Dworkin similarly views disease as something that befalls a patient as a matter of circumstance rather than a patient's own choice. (99) He believes that this property is what renders health an appropriate arena for social remedy. …

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