Are We Suffering from an Undiagnosed Health Right?

53 Pages Posted: 5 Jul 2017 Last revised: 5 Mar 2018

Date Written: March 4, 2017

Abstract

In a number of controversial health law cases, health-promoting measures are struck or disabled ironically because they did not do enough to protect health. Courts invalidate carve-outs from health protections, but then shy away from requiring the provision of any given health protection at all. I explain this all-or-nothing phenomenon by postulating a judicially-assumed health rights conception operating unacknowledged. This hypothesis explains health cases in two major areas: tobacco regulation and the Affordable Care Act (ACA), even as it accounts for the failure to apply all-or-nothing approaches to medical services relating to sex, gender and reproduction.

First, I show that two distinctive features of Dworkinian rights, namely, 1) their distributed character, and 2) their power to preclude ordinary justifications for reasons “internal” to the right, characterize judicial reasoning in the tobacco and ACA cases. Meanwhile, these features are rejected in the gender identity and reproductive health cases, illustrating the inescapable, covert delineation of health rights that courts engage in.

In the tobacco and ACA cases, judges strike measures for excluding based on age, physical characteristics, socioeconomic factors, or status as the “neediest among us.” These countervailing factors plausibly conflict “internally” with the reasons we value health in the first place, and therefore should not weigh against the health purpose served by the measure in question. This Dworkinian grammar of lexical prioritization, or “trumping” is distinctive to rights discourse, and thus reveals courts’ regulative conception of how health should be valued as a right.

Yet, consistent with the rights critique literature, rights discourse is not necessarily health-promoting. The perverse operation of this rights-paradigm, which functions in the tobacco and ACA cases to undermine collective efforts to advance health, stems in part from the court’s unwillingness to acknowledge or declare the rights conception they harbor.

Keywords: theories of rights, Dworkin, Waldron, administrative law, constitutional law, right to health, Medicaid, tobacco, Affordable Care Act, individual mandate

JEL Classification: I13, I14, I18, K23, K32

Suggested Citation

Ho, Christina S., Are We Suffering from an Undiagnosed Health Right? (March 4, 2017). American Journal of Law and Medicine, Vol. 42, No. 4, 2016, Available at SSRN: https://ssrn.com/abstract=2996184

Christina S. Ho (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States

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