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The Freedom of Health

would have happened if the Patient Protection and Affordable Care Act
(PPACA)1 really had authorized government “death panels”
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.

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), health law scholars have debated the
usefulness and propriety of protecting individuals’ liberty in medical
decisionmaking. 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.
That is, in the somewhat disputed parlance of constitutional law, the
right would be a negative one rather than a positive one,
protected alongside other negative

liberties under the Fourteenth Amendment’s guarantee of substantive
due process.