The Patient Protection and Affordable Care Act, Public Health, and the ...

The Patient Protection and Affordable Care Act, Public Health, and the Elusive Target of Human Rights Lance Gable

Introduction The passage of the Patient Protection and Affordable Care Act (ACA) in March 2010 represents a significant turning point in the evolution of health care law and policy in the United States.1 By establishing a legal infrastructure that seeks to achieve universal health insurance coverage in the United States, the ACA targets some of the major impediments to accessing needed health care for millions of Americans and by extension attempts to strengthen the health system to support key determinants of health. Yet, like many newly passed legislative provisions, the ultimate effects and significance of the ACA remain uncertain. Those charged with implementing the ACA face formidable obstacles — indeed, some of the same obstacles that have been erected to impede other major pieces of social legislation in the past — including entrenched political opposition, constitutional challenges, and what will likely be a prolonged struggle over the content and direction of how the law is implemented. As these debates continue, it is nevertheless important to begin to assess the impact that the ACA has already had on health law in the United States and to consider the likely effects that the law will have on public health going forward. While most of the media and scholarly attention given to the ACA has correctly focused on its complex health insurance provisions and the constitutional wrangling over the legitimacy of federal power in mandating that everyone have health insurance,2 the legislation sets in motion a wide range of programs that also signify a moderate but important regulatory shift in the role of the federal government in public health. Some of these provisions are straightforward public health initiatives, such as the creation of the Prevention and Public Health Fund,3 expansion of clinical and community preventive services,4 establishment of menu nutrition labeling requirements,5 and funding of demonstration projects to encourage individualized wellness plans.6 Other provisions — most notably the core provisions of the ACA that aim to increase availability of and access to health insurance — will likely impact public health more indirectly through systemic changes to health insurance markets and payment practices that will lead to better access to health care and therefore better population health. Taken together, a range of ACA provisions designed to expand insurance coverage, control costs, and tarLance Gable, J.D., M.P.H., is an Assistant Professor of Law at Wayne State University Law School. He also is a scholar with the Centers for Law and the Public’s Health: A Collaborative at Georgetown and Johns Hopkins Universities, a Collaborating Center of the World Health Organization and the Centers for Disease Control and Prevention.

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get prevention have the potential to improve population-level health outcomes across all income groups. If properly implemented, these provisions could alleviate some of the burdens imposed on the public’s health by insufficient availability of health insurance and inadequate access to health care. Critics have cor-

these conditions. These developments mean that, to a degree, the United States has undertaken the same types of legal and policy steps that a country would be required to take to uphold the right to health without actually recognizing the right to health in any formal or legally binding way.

Taken together, a range of ACA provisions designed to expand insurance coverage, control costs, and target prevention have the potential to improve population-level health outcomes across all income groups. If properly implemented, these provisions could alleviate some of the burdens imposed on the public’s health by insufficient availability of health insurance and inadequate access to health care. rectly pointed out many shortcomings of this legislation with respect to public health.7 The ACA does not take a public health approach to addressing deficiencies in the United States health system or challenge the decades-long medicalization of health with a population-based approach. Yet, despite its primary focus on health insurance rather than public health, I believe it is accurate to characterize the ACA as a public health law. The expansion of health insurance access to millions of people currently uninsured is one possible route to achieve better population health, albeit through health system reform rather than through direct public health initiatives. Whether this public health vision of the ACA comes to pass will depend largely on the content of the regulations still to be promulgated to implement the law. This article briefly addresses two interesting policy paradoxes about the ACA. First, while the legislation primarily addresses health care financing and insurance and establishes only a few initiatives directly targeting public health, the ACA nevertheless has the potential to produce extensive public health benefits across the United States population by improving access to health care and services and reducing cost. Essentially, the ACA does not take the explicit form of a public health law but instead strives to advance public health indirectly through its effects. Second, while the ACA does not establish a right to health — or even a right to health insurance — in the United States, it does set in motion a number of significant structural and normative changes to United States law that comport with the attainment of the right to health. Most significantly, key provisions of the bill are designed to improve availability, accessibility, acceptability, and quality of conditions necessary for health, and to prompt the government to respect, protect, and fulfill

Despite these dual paradoxes and the upside potential for public health improvements resulting from the ACA, the public health impact of the law remains uncertain and will be decided by numerous subsequent regulatory and implementation decisions. The ACA contains at least 40 different provisions that may authorize agency rulemaking,8 a process that will largely dictate the systemic and health impacts that will become its legacy. This reality opens up ample opportunity to bolster public health aspects and interpretations of the law, and to simultaneously augment the corresponding components of the right to health. The sections that follow explore the context of the political debates that led to the passage of the ACA, examine systemic changes initiated by the ACA that may yield direct and indirect public health benefits, analyze the interplay between ACA initiatives and the human right to health, and offer recommendations for advancing both public health and the right to health through ACA implementation.

Health Reform in the United States: A Perennial Struggle for Common Ground The political debate over the structure of the health care system in the United States has simmered for many decades, revolving around key issues of access to health services, quality of care, cost, and the role of government. Past efforts to improve health and control costs in the United States have not adequately addressed these key issues, leading to mediocre results on important population health indicators, unequal health outcomes across different demographic groups, and limited access to health services for many people due to cost and inability to obtain health insurance. The goals of universal access to health insurance and to health care services have emerged in legisla-

public health reform • fall 2011

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tion numerous times during the past century, but past efforts to implement national-level health reforms have either been derailed or limited by political pressures and the tenacity of the status quo. Indeed, the passage of the ACA runs counter in many ways to the failures and partial successes of national-level health reform in the past. The history of health reform in the United States has been marked by multiple failed attempts to create national health insurance programs dating back at least to President Theodore Roosevelt’s presidency. Significant efforts to enact universal health insurance were mounted during the New Deal Era by President Franklin Delano Roosevelt and again during the Truman administration. President Lyndon Johnson succeeded in passing legislation establishing Medicare and Medicaid to insure the poor and elderly, but was unable to secure a broader comprehensive government health insurance program. National health insurance proposals were offered, without success, by Presidents Nixon, Carter, and Clinton.9 The failures of most of these earlier efforts to enact broad systemic changes to the health care system can be attributed to a number of factors. Strong political opposition from politicians and the health care industry, particularly the American Medical Association and health insurance interests, doomed many of these provisions. Political resistance of this sort was often coupled with more general ideological opposition to undercut health reform initiatives, grounded in the historical American aversion to a strong federal government role in private sector activities and concerns about upsetting the status quo.10 Additionally, the inherent complexity of the United States health care system, with its public-private structure and multiple participants, demands detailed, voluminous legislation, which presents an additional impediment to the passage of comprehensive health reform legislation.11 In the absence of comprehensive national health insurance reform, the federal government instead engaged in more politically viable efforts in the form of piecemeal expansions of government regulation of and participation in the health care system. Major legislation over the last 20 years, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA),12 the Children’s Health Insurance Program,13 and Medicare Part D,14 has gradually reshaped and expanded the federal role in financing and regulating health care. But in spite of these legislative and regulatory efforts, the problems extant in the American health care system — inadequate access to health care services and insurance coverage to pay for care, rampant health care cost increases that outpace inflation, and pervasive disparities in access to and quality of care — persist and have worsened over time.15 342

Health indicators and expenditures in the United States do not compare favorably to other high-income countries. Health services in the United States are more expensive and less effective when considered at the population level. The United States has by far the most expensive health care system in the world. In 2007, the United States spent $7,290 per capita on health care, which amounted to $2.241 trillion in national health expenditures and 17.3% of GDP.16 This amount greatly exceeds health care spending — both per capita and by percentage of GDP — in all other Organisation for Economic Co-operation and Development (OECD) countries. For example, Canada spends $4,403 per capita and the United Kingdom $3,867 per capita (10.1% and 8.4% of GDP respectively). Yet, by many important measures of health quality, the United States gets inferior health outcomes. According to the World Health Organization (WHO), the United States ranks a paltry 34th worldwide in maternal mortality rates and 40th in the probability that a child will die before age 5. By comparison, Canada ranks 21st and 28th, while the United Kingdom ranks 25th and 28th. Although the United States spends nearly twice as much per person, the average American lives two years less than his or her counterpart in the United Kingdom, and three years less than his or her Canadian neighbors.17 Worryingly, the United States ranks last among industrialized nations in mortality from conditions preventable with timely and effective care.18 The prevailing incongruity between high health care expenditures and less than impressive health outcomes in the United States likely stems from a number of sources, including exclusionary health insurance practices that deter and delay access to health care services, inefficient and anticompetitive health insurance markets, and a preference for costly hightechnology health care over more affordable preventive approaches. Further, gross disparities exist and persist between wealthy and poor Americans in access to health care and health outcomes. Within the United States, wide discrepancies in life expectancy and health outcomes exist across racial, ethnic, and geographic demographic groups.19 These disparities exist in part due to unequal access to health insurance, as well as differences in economic, behavioral, and environmental factors. A sad reality of health in the United States is that there are two very different standards of care within the health system: a very high standard with excellent health outcomes for the wealthy and privileged with good health insurance, and an inadequate standard with poor health outcomes for those with less resources, many of whom are also members of minority groups. journal of law, medicine & ethics

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Lack of health insurance is a prime factor driving disparate health outcomes in the United States. Recent data suggest that approximately 46.3 million people in the United States lack health insurance.20 Millions more have health insurance that provides inadequate coverage should they become seriously ill.21 Expert analysis predicted that without the changes to the health care system in the United States enacted by the ACA, 54 million nonelderly persons would have lacked insurance by 2019, a number that is projected to be reduced substantially under the ACA.22 Passage and Design of the ACA: Calculations of Process, Structure, and Discourse After his 2008 election, President Obama arrived in office with strong electoral support and large partisan majorities in Congress, riding a wave of optimism that the major policy changes proposed during his presidential campaign would be advanced and enacted. The financial crisis of fall 2008 dominated the first few months of his presidency, but health reform quickly emerged as a major legislative initiative. The need to address the many deficiencies in the United States health system provided a strong impetus for yet another attempt at comprehensive health systems reform in the United States. The justification for reform was as compelling as ever. The ensuing debate over health reform in the United States that dominated the political and policy discourse for much of the past three years has been protracted, contentious, and at times frustrating. Health reform legislation moved through multiple congressional committees in both the House of Representatives and the Senate, overcoming staunch opposition from Republican legislators. The Senate version of the bill, entitled the “Patient Protection and Affordable Care Act,” was passed by both Houses of Congress and signed by President Obama on March 23, 2010.23 Several explicit calculations were made in the design of the legislation that eventually became the ACA to ensure its passage through a skeptical Congress and to attempt to frame the debate. First, a deliberate decision was made by drafters of the legislation to focus it primarily on health insurance reform. Public health justifications for the legislation were advanced numerous times in congressional debates on the ACA, but the overwhelming focus of the congressional and media statements related to the legislation centered on the health insurance aspects of the proposal.24 While numerous other initiatives were eventually included in the Bill, the most prominent provisions of the legislation are health insurance system reforms, predicated on the idea that expanding access to health insurance will support expanded access to health care. The ACA

does not adopt a public health model; indeed, most of its provisions anticipate helping individuals pay for medical services. To the extent that preventive or public health initiatives were included, these programs were tangential to the main core of the legislation, and are more susceptible to being ignored as the political winds change and support dwindles. This decision reflects both the political pressures affecting the legislative process and the longstanding disregard for population health models in the United States. Second, the passage of the ACA overcame political opposition only by preserving many aspects of the existing health insurance system. President Obama and his congressional allies famously rejected a single-payer approach before the negotiations on the legislation began.25 During the course of negotiations, members of Congress considered, but rejected, the idea of establishing a public health insurance option to compete with private insurers to drive down costs.26 These decisions ultimately produced a bill that relied heavily on private sector insurers and market-oriented infrastructure. Third, neither the language of the ACA itself nor the discourse used during the health reform debate embraced human rights discourse or employed rightsbased approaches. In his September 9, 2009 address to Congress, for instance, President Obama did not invoke health care as a right. Instead, his three themes focused on straightforward policy goals: increasing stability and security for those who have insurance, providing insurance for those who do not have it, and reducing cost in the system.27 The only statement linking health reform to a larger ethical concern was a reference from a letter written to the President by the late Senator Edward Kennedy, extolling the “fundamental principles of social justice and the character of our country” underlying health reform proposals.28 The unwillingness of lawmakers to recognize a right to health in this current legislative debate generates no surprise given the long tradition of disdain in the United States against international law generally and international human rights standards in particular.29 Historically, while the United States has been a fierce advocate for human rights and the primary international actor in shaping the content of human rights treaties, domestic political and philosophical opposition to international human rights obligations have limited their acceptance.30 American exceptionalism in this regard applies to both the ratification of human rights treaties and the domestic incorporation of human rights into political and legal discourse (we prefer to speak instead of “civil rights” which entail mostly civil and political rights). American jurisprudence and politics have consistently rejected economic, social,


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and cultural rights in particular. Opponents of social and economic rights have raised reasonable objections on issues such as cost and difficulty of implementation.31 However, issues of cost and complexity should not render human rights any less fundamental and the process of “progressive realization” permits gradual improvement to meet the standards required by social and economic rights.

have limited impact on public health and fails to advance the human right to health. Yet, as the following sections demonstrate, both of these assertions are disputable.

Exploring the Explicit and Hidden Public Health Aspects of the ACA

Assessing the public health impacts of the ACA presents a challenge. The ACA itself is detailed and voluminous, and regulations implementing its various component parts are still being developed. This precludes any The decisions to focus the ACA on health sort of comprehensive assessment of the insurance reform, to maintain (and expand) effects the legislation is likely to have on the private health insurance system, and public health. Nevertheless, the provisions of the law can be categorized into several to justify reform based on access and cost rather than on a right to health have led some substantive areas. A number of provisions in the law explicitly use or fund pubto conclude that the ACA will have limited lic health approaches to seek to improve quality of care, health education, access impact on public health and fails to advance to information, and preventive services. the human right to health. Yet, both of these A second category of provisions, which assertions are disputable. comprise the preponderance of the legislation, use health insurance reform to provide expanded access to health insurance coverage and to contain costs in the health Given these realities, the Obama Administration care system. These provisions do not adopt a puband its congressional allies may have chosen not to lic health approach or directly consider population pursue legislation that acknowledged a right to health health. However, the potential positive effects of the for strategic political reasons. The legislation as proACA provisions on health insurance reform on public posed spurred vociferous protests and a strong politihealth outcomes are substantial. cal backlash even without invoking new rights protections. Adopting a right to health as a cornerstone of Quality Improvement, Prevention, and the legislation could have complicated the health care Public Health Initiatives in the ACA debate since recognition of this right likely would have The public health initiatives that are directly included required more extensive systemic changes and therein the ACA create some important programs to fore a greater deviation from the status quo. Antipathy advance public health at the national level and to for international human rights obligations, coupled fund and coordinate projects at all levels. Prevention with existing political wariness of the federal governemerges as a key theme in these initiatives.32 The ACA ment and the prospect of the expansion of its role in establishes a National Prevention, Health Promotion, the health care system, may have strengthened the and Public Health Council to coordinate prevention opposition to the legislation. and public health efforts at the national level and to On the other hand, the omission of human rights develop a National Prevention Strategy that offers perspectives from this debate may have deprived evidence-based best practices for prevention.33 Initial proponents of health reform of powerful arguments drafts of the National Prevention Strategy embrace a to support changes to the existing system. Characpublic health approach, focusing on initiatives to creterizing health as a human right grants it significant ate healthy communities by improving social determoral weight even in the absence of legal obligations minants of health, and to reduce harmful behaviors to enforce the right. linked with preventable disease such as tobacco use, In sum, the decisions to focus the ACA on health alcohol and drug abuse, and unhealthy eating habinsurance reform, to maintain (and expand) the priits.34 The law also provides for a Prevention and Public vate health insurance system, and to justify reform Health Fund to supply funding to invest in prevention based on access and cost rather than on a right to and public health initiatives.35 health have led some to conclude that the ACA will

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A number of provisions attempt to improve the quality of care and services provided in the health care system. Proposals include promising ideas such as supporting comparative effectiveness research and other research into best practice in the health system;36 demonstration projects for payment experiments in Medicare and Medicaid to encourage coordinated care;37 funding for community health centers, schoolbased health centers, and community transformation grants;38 and expanded public health education campaigns.39 Still other provisions aim to augment information available to individuals to encourage better decision making with respect to insurance purchasing,40 health care utilization,41 and food choices.42 Probably the most consequential prevention-related provisions in the ACA change how health insurers are required to treat coverage for preventive services. As of January 1, 2011, Medicare covers annual wellness visits without cost-sharing by individual patients, and incentives for state Medicaid program coverage of preventive services will go into effect in 2013.43 New employer-sponsored group health plans and individual health insurance policies will be required to cover identified preventive services and immunizations without cost-sharing.44 These changes to insurance coverage requirements will expand access and utilization of these services, likely resulting in better overall health outcomes and lower costs, since preventive care costs less than health services provided to treat or cure infectious and chronic health conditions. Collectively, these quality, prevention, and public health initiatives represent a positive step forward in efforts to improve public health in the United States. However, these initiatives provide only a limited expansion to public health services and programs. These initiatives also may face significant obstacles during their implementation. The text of the ACA authorizes appropriations for many of these programs, but many of the actual appropriations must be approved separately by Congress during the budgeting process, hardly a certain prospect in the current debt-obsessed political climate on Capitol Hill. For example, in several sections under the law, funds “are authorized to be appropriated [in] such sums that may be necessary for each fiscal year.”45 Conditional language like this calls into question the ongoing support and funding for many of the public health and prevention initiatives. Uncertainty about resource availability for prevention and public health exists even with respect to programs that have more explicit appropriations in the ACA, such as the Prevention and Public Health Fund. The Fund was allocated $500 million for fiscal year 2010, but only directed half of that sum to public health activities. The remaining $250 million was

spent on investments in the primary care workforce, a move opposed by many public health advocacy organizations.46 Thus, the details and impact of these initiatives remain uncertain. They present a helpful, but not sufficient, series of efforts to expand public health funding and enhance public health services at the national level. Insurance Reform Initiatives in the ACA The second major category of reforms in the ACA — the historic structural changes to health insurance markets and the expansion of health insurance coverage to millions of new individuals — will ultimately have a much more consequential effect on public health than will the direct public health efforts described above. The insurance reform provisions of the Act seek to both expand access to health insurance and control costs within the health system. expanding access to health insurance for the uninsured or underinsured The ACA attempts to expand access to affordable health insurance by establishing three interlinked policies: limits on pre-existing condition exclusions and expenditure caps, mandates for individuals and employers to purchase coverage, and financial assistance for qualifying persons and entities. imiting pre-existing condition exclusions and L expenditures caps. The ACA targets a major impediment for accessing health insurance by limiting the ability of insurers from excluding people based on pre-existing conditions, from placing lifetime and yearly aggregate limits on health expenditures, and from rescinding coverage except in cases of fraud.47 These provisions herald a significant change in current insurance practices in the individual market, which often exclude people from coverage or charge them exorbitant premium rates on the basis of their past medical history or current medical condition. These changes extend protections to the individual health insurance market that were previously in place in the group insurance market. Individual mandate and employer mandate. The ACA also requires individuals to have insurance coverage, whether purchased through employersponsored plans or the individual market via a health insurance exchange, or provided by a government health insurance program. Individuals who do not have qualifying/adequate health coverage can be penalized.48


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mployers with more than 50 employees also are E required to provide health insurance coverage to their employees and to pay a designated percentage of that coverage. Employers will face penalties for failure to meet this requirement.49 ubsidies for qualifying individuals and small S businesses. The mandate requirements have presented one of the more politically contentious aspects of the reform proposals due to the cost they impose on individuals and employers.50 Consequently, the reform proposals provide qualifying individuals and employers with premium subsidies to assist with the cost of health insurance.51 hese three policies work together to expand T access, to prevent persistent insurance problems like cherry picking and adverse selection, and to avoid imposing substantial financial burdens on any individual purchaser. All three are necessary to avoid negative policy implications. The limits on eligibility criteria and caps are only workable if the insurance pool is sufficiently large to adequately spread risk. The mandates assure that this is possible, and the subsidies ensure that the mandates are affordable for all and that both the individual and public health benefits of this expanded access are realized. Health insurance exchanges. The ACA creates health insurance exchanges as a mechanism to facilitate purchasing of health insurance. The exchanges would aggregate insurance options in one place to allow purchasers to easily compare and thus to spur competition among insurance providers.52 Essential health benefit packages. The ACA establishes requirements for a minimum level of benefits covered by a health insurance plan.53 The inclusion of a base-level of health insurance benefits ensures that a basic level of care is covered and available, including prevention services. Other access expansions. A number of additional provisions seek to expand eligibility for health insurance or the scope of coverage provided by health insurance plans. The proposals include expansions of Medicaid eligibility to cover people making a higher income; the elimination of eligibility restrictions on Medicaid to allow coverage of all individuals with incomes under the specified level, not just the categorically eligible; phasing out of the Medicare Part D prescription drug cover346

age gap — the so-called “donut hole”; and authorization for states to form interstate purchasing compacts to allow insurers to sell policies across state lines.54 The likely impact of these provisions, especially the expansion of Medicaid eligibility to all low-income adults and the reduction in out-ofpocket pharmaceutical expenses for seniors, could be substantial. Expanding access to health insurance along the lines of these provisions will almost certainly also increase access to and utilization of health services, which will in turn improve population-health outcomes, particularly in demographic groups likely to lack insurance. However, if the system implodes based upon the individual health insurance mandate being struck down by the courts,55 then the viability of the entire insurance system will be at risk,56 a development with dire implications for public health. Cost containment across the health system. Several provisions in the ACA seek to contain costs related to health care expenditures. Reductions in payments to certain health plans and providers in Medicare and Medicaid account for some proposed savings (although whether these reductions will occur in practice remains tenuous),57 as do programs to implement administrative streamlining and to reduce waste, fraud, and abuse.58 In addition, the legislation imposes an excise tax on plans with expenditures above designated dollar amounts to deter the provision of “excess benefits” (the so-called “Cadillac tax”).59 The cost control initiatives may or may not have a positive impact on public health. Cost controls may improve the solvency and stability of the health system and health insurance system, which could have beneficial impacts on public health.60 Further, if cost control efforts are coupled with coordinated care initiatives advanced by the ACA in the form of Accountable Care Organizations (ACOs) and demonstration projects, this streamlining of the health system may improve public health outcomes.61 By contrast, cost control initiatives may result in negative effects on individual and population health. The establishment of the Medicare Independent Payment Advisory Board (IPAB) to create guidelines for cost-effective treatments to be covered by Medicare could have the effect of narrowing the range of covered procedures, thus limiting access to certain types of care.62 The effect of this strategy on public health is not clear. Presumably, if done well, the resources freed up by this assessment and prioritization will lead to expanded access to more effective health interventions. However, individual patients may find their choices limited. If cost constraints imposed on Medijournal of law, medicine & ethics

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care payment to doctors and hospitals are too severe, then many of these providers may stop accepting Medicare patients, leading to a crisis in access with negative implications for public health.63 This discussion suggests that the ACA may have substantial public health effects, even though it is not the most effective public health strategy that could have been pursued. The content and structure of the ACA limit its facial public health impact but not necessarily its eventual effective public health impact. Moreover, the vagueness of many sections of the law presents an opportunity to push the law in a public health direction. The effects of the legislation could lead to better population health outcomes, particularly if increased access to health insurance yields better access to preventive and primary care.

The ACA and the Human Right to Health The human rights paradigm provides a powerful framework for advancing health. Yet efforts to reform the health care system in the United States have largely avoided the language of human rights and have not attempted to grasp the moral mantle or prodigious infrastructure of established human rights norms and systems. The debate surrounding the ACA, as well as the content of the legislation itself, continues this tradition of avoiding rights discourse in federal health legislation in the United States. The health indicators cited above64 present a health care system that, while strong in some ways, remains fundamentally unjust. Moreover, it is a system that fails to comport with principles of human rights, which require governments to ensure that fundamental rights and freedoms are upheld for all people. International law, scholarly commentary, and many national governments around the world have explicitly recognized health as a human right.65 The United States, by contrast, has resisted acknowledging health as a human right, thus precluding opportunities to adopt rights-based health policies and strategies that could resolve some of our systemic deficiencies. Health as a Human Right: An Evolution of Substance and Process Health affects all facets of life and cuts across a wide range of human activities. Yet defining health or developing policies and systems to address health risks and needs presents challenges. Health can be defined as one’s physical and mental state of being or as an aspirational goal to improve or perfect that state of being. The Constitution of the WHO famously defines health as a “state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.”66 A minimum level of health is a precondi-

tion for full participation in society. Thus, health is simultaneously integral to the human condition and a complex, relativistic concept. Human rights law, as developed through international treaties and explanatory documents and implemented through various legal regimes around the world, relies on two foundational concepts. First, human rights are universal and immutable. They cannot be relinquished or abolished through political machinations.67 Second, human rights transcend state sovereignty and obligate governments to protect, respect, and fulfill the human rights of all people within their jurisdictions.68 The right to health has undergone a gradual transformation within international law since its formal inception in Article 25 of the 1948 Universal Declaration of Human Rights (UDHR). Article 25 recognized everyone’s “right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”69 The UDHR, although not a binding legal standard, defines health broadly to include a range of social and economic determinants that form the foundation of achieving good health. In 1966, the International Covenant of Economic, Social, and Cultural Rights (ICESCR) codified a right to health into a binding international treaty, although framed somewhat ambiguously in Article 12 as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” This Covenant, which has not been ratified by the United States, goes on to require states to take steps to create “conditions which would assure to all medical service and medical attention in the event of sickness.”70 Two subsequent international initiatives have reinforced broad understandings of the right to health and focused on the underlying determinants of health as central to the content of the right. The UN Committee on Economic, Social, and Cultural Rights drafted General Comment 14, a guidance document that interpreted the scope of the right to health in Article 12 of the ICESCR.71 Additionally, the establishment of a Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental Health has helped to interpret further the content of the right to health. General Comment 14 defines the right to health inclusively. Health rights are not restricted to providing access to medical care and treatment, but rather encompass an array of underlying determinants of


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health, including access to safe and potable water, adequate sanitation, adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, access to health-related education and information, and participation in health-related decision making at community, national, and international levels.72 Interestingly, this guidance requires states to adopt a national strategy to realize the right to health and implement sufficient legal infrastructure to support this strategy.73 Governments must respect, protect, and fulfill the right to health under the auspices of General Comment 14. The obligation to respect the right to health demands that governments themselves act in ways consistent with the right to health.74 The obligation to protect the right to health requires governments to prevent other entities and individuals from infringing on the right.75 Finally, the obligation to fulfill the right to health demands that governments take affirmative steps to facilitate, provide, and promote efforts that satisfy the right to health.76 As described in more detail below, a number of aspects of the ACA comport with these articulated right to health obligations, particularly the obligations to protect and fulfill. General Comment 14 to the ICESCR outlines four key elements to achieving the right to health: availability, accessibility, acceptability, and quality. The element of availability demands that “functioning public health and health care facilities, goods and services, as well as programmes, have to be available in sufficient quantity.”77 By comparison, accessibility demands equal access to health facilities, goods, and services through adherence to standards of non-discrimination and reductions in barriers to access based on physical, economic, or informational factors.78 The element of acceptability requires the provision of health facilities, goods, and services consistent with medical ethics and varying cultural traditions.79 Quality demands that health facilities, goods, and services are of good quality and provided according to medical and scientific standards.80 Many ACA provisions satisfy some of the criteria established for each of these key elements, while other criteria are not addressed. Nevertheless, the ACA is positioned to advance the functional compliance with these important measures that comprise core elements of the right to health. The Special Rapporteur on the Right to Health has issued several useful reports that provide explanatory context to General Comment 14 and by extension continue to develop the normative content of the right to health.81 Notably, one report examined the relationship between health systems and the right to health, recognizing that “a strong health system is an essential element of a healthy and equitable society.”82 The 348

Special Rapporteur analyzed the interface between the six building blocks for a health system identified by WHO (health services; health workforce; health information systems; medical products, vaccines, and technology; health financing; and leadership, governance, and stewardship)83 and the right to health, concluding with recommendations to strengthen public health systems through national health reform.84 The perspective on health systems and the right to health in this report provides a useful model to evaluate the systemic changes instigated by the ACA, developed in detail below. Neither General Comment 14 nor the work of the Special Rapporteur have legally binding effect, even on states that have ratified the ICESCR (which the United States has not), but their conceptualization of the right to health is useful nonetheless as a means to evaluate health policies and programs according to international human rights standards. Health Reform and the Human Right to Health The second key paradox of the ACA is that despite not recognizing a right to health, the legislation does satisfy some of the core components of the right to health as developed in international human rights law, General Comment 14, and related interpretive documents. In particular, aspects of the ACA comport with the requirement of governments to respect, protect, and fulfill the right to health; to take steps to provide conditions of adequate availability, accessibility, acceptability, and quality for health; and to satisfy the underlying determinants of health. The discussion that follows explores the potential implications for realizing the right to health of both the quality improvement, prevention, and public health initiatives, and the health insurance reforms, contained in the ACA. ACA Quality Improvement, Prevention, and Public Health Initiatives and the Right to Health Prevention and public health initiatives in the ACA largely come under the rubric of the government obligation to fulfill the right to health. These initiatives are affirmative efforts by the federal government to bolster the public health infrastructure. The National Prevention Strategy and the Prevention and Public Health Fund, for example, strengthen the national public health infrastructure, and in turn support the increased availability, accessibility, and quality of public health goods and services. The attention given to expanding healthy communities by improving social determinants of health in the National Prevention Strategy recognizes the importance of underlying determinants of health, a core precept of General Comment 14’s interpretation of the right to health.85 journal of law, medicine & ethics

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The quality improvement initiatives advanced by the ACA support the responsibility of governments to uphold good quality in health-related goods and services under the right to health. Therefore, the proposals to incentivize coordinated care through accountable care organizations,86 engage in comparative effectiveness and best practices research,87 allocate resources for community infrastructure improvements,88 and expand prevention and public health education89 all have the potential to improve quality. The effects of

ingly, the allocation of money from the Public Health and Prevention fund to workforce expansion programs in FY 2010 supports availability by augmenting health infrastructure (and possibly improving public health indirectly) while taking funds away from direct public health efforts. While the diversion of the fund was opposed by public health organizations,93 use of these funds for either public health activities or workforce expansion is consistent with fulfilling the right to health and supporting health systems.94

The quality improvement initiatives advanced by the ACA support the responsibility of governments to uphold good quality in health-related goods and services under the right to health. Therefore, the proposals to incentivize coordinated care through accountable care organizations, engage in comparative effectiveness and best practices research, allocate resources for community infrastructure improvements, and expand prevention and public health education all have the potential to improve quality. The effects of these initiatives also may support greater availability and accessibility to health goods, particularly in the form of greater public health infrastructure and more affordable services. these initiatives also may support greater availability and accessibility to health goods, particularly in the form of greater public health infrastructure and more affordable services. Fostering individual access to information likewise buttresses accessibility and acceptability of services through better transparency and awareness of available services.90 Requirements increasing coverage for preventive services in both public and private insurance systems similarly comport with aspects of the right to health. The expansion of coverage for preventive services in the Medicare and Medicaid programs fits nicely under the government’s obligation to fulfill the right to health.91 The concomitant requirement for new employer-sponsored group health plans and individual health insurance policies to cover identified preventive services and immunizations without costsharing is consistent with the obligation to protect the right to health, since it directs third parties to act in ways consistent with the right to health.92 If these public and private insurance coverage requirements expand access to and utilization of preventive services, they will satisfy right-to-health conditions of availability and accessibility. Efforts to provide incentives for health care workforce expansion and improvement meet the criteria for enhancing availability of health care services. Interest-

ACA Insurance Reform Initiatives and the Right to Health From a human rights perspective, the core triumvirate of policies set in place to expand access to health insurance — limits on pre-existing condition exclusions and expenditure caps, mandates for individuals and employers to purchase coverage, and financial assistance for qualifying persons and entities — will help to protect and fulfill the right to health, provided that this approach succeeds in expanding access to insurance and, by extension, to health services. Under General Comment 14, governments have “a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-care facilities.”95 However, the same section admonishes health systems that preference curative medical care over preventive services that will have greater population impact on health. This tension with respect to the right to health is prevalent across various aspects of insurance reform proposals in the ACA. Many provisions advance some components of the right to health while falling short of others. imits on pre-existing condition exclusions and L expenditures caps. ACA limits on insurance exclusions based on pre-existing conditions and lifetime and yearly aggregate limits on health expenditures


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for individual health insurance plans, as well as prohibitions of coverage rescission except in cases of fraud, provide an important expansion of accessibility to health insurance for millions of uninsured Americans.96 These health insurance regulations will help to ensure equal access to health insurance regardless of health status consistent with the government’s duty to protect under the right to health.97 In turn, the expanded access to health insurance resulting from these regulations will foster economic accessibility by making health goods and services more affordable.98 Individual mandate and employer mandate. The ACA insurance coverage requirements for individuals and larger employers99 arguably could be consistent or antithetical to the right to health. On one hand, actually compelling individuals to receive treatment would impose upon rights to autonomy and could contravene the government’s right to respect health, which would allow individuals to make decisions about their own health without interference. However, the insurance mandate does not require individuals to use health services, it merely requires them to participate in the insurance pool to support the systemic solvency. This larger goal and the integral nature of the mandate in the functioning of the entire health insurance scheme proposed by the ACA could legitimately be viewed as consistent with the government’s obligation to fulfill the right to health and improve accessibility to health goods and services. ubsidies for qualifying individuals and small S businesses. Qualifying individuals and employers may be eligible for premium subsidies to assist with the cost of health insurance.100 This initiative comes within the duty to fulfill the right to health. The direct subsidization of health insurance premiums expands access to health insurance, which in turn creates greater accessibility to services. Health insurance exchanges. The reform proposals create health insurance exchanges as a mechanism to facilitate purchasing of health insurance. The exchanges aggregate insurance options in one place to allow purchasers to easily compare and thus to spur competition among insurance providers.101 The health insurance exchanges are not easy to evaluate from a human rights perspective, especially since they are still being developed. If the exchanges succeed in increasing competition and expanding access to affordable health insurance, then they would support the realization of the right 350

to health. On the other hand, it could be argued that the exchanges, and the privatized focus of the health insurance reform more generally, provide insufficient progress on expanding accessibility to health insurance. Other models, such as including a public health insurance option in the exchanges, would likely have even greater effects on reducing insurance costs and increasing accessibility. Essential health benefit packages. The inclusion of a base-level of health insurance benefits under essential health benefits packages102 comports with notions of accessibility and acceptability under the right to health, since these requirements ensure that a basic level of care is covered and available, including prevention services. The Special Rapporteur’s Health Systems Report highlights the creation of a core set of essential health services as a key precondition for a health system compliant with the right to health.103 The essential benefits coverage requirements do not fully meet the standards in the Report because they pertain to insurance coverage instead of actual services, only apply to some insurance policies, and will inevitably only cover some of the many basic services suggested by the Special Rapporteur (some reproductive health services, for example, are explicitly not covered under the ACA).104 Yet despite these shortcomings, the establishment of essential benefits coverage renders many basic health services more likely to be accessible after the new requirements are implemented. Other access expansions. The eligibility expansions for Medicaid and the elimination of the Medicare Part D prescription drug coverage gap both represent policies that meet the governmental obligation to fulfill the right to health.105 These initiatives are straightforward expansions in the social support system provided by government, designed to support accessibility to health facilities, goods, and services through insurance coverage. Cost containment and the right to health. The aforementioned cost containment provisions in the ACA raise difficult issues from a human rights perspective. The imposition of cost-containment measures on health insurance systems does not inherently undermine the right to health. Practically speaking, however, initiatives that reduce Medicare and Medicaid payments to participating health plans and providers106 and disincentivize more generous benefits within health plans107 can limit access of individuals to needed, or desired, health services. These types of inijournal of law, medicine & ethics

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tiatives may run contrary to government obligations to protect and fulfill the right to health and to expand availability and acceptability of health goods and services. The excise tax seems to be a particularly blunt instrument to limit spending based upon a maximum dollar amount for insurance coverage. By contrast, ACA cost-containment efforts could support the right to health by preserving resources for essential services that would otherwise be expended on less vital needs. Shoring up the financial stability of the whole health system, including the health insurance market, may improve availability and accessibility of health goods and services in the aggregate and

vidual right to health. The ACA targets some but not all of the underlying determinants of health outlined in General Comment 14. Important determinants of health such as clean air, water, and food are not key parts of the legislation, and other core obligations are not directly addressed. Furthermore, the ACA arguably does not maximize health benefits by choosing complex private systems instead of a more efficient and universal single-payer system. In sum, the ACA satisfies some of the preconditions required by the right to health, as developed under international law and norms. The accumulation of health system reforms enacted by the ACA advance and

ACA cost-containment efforts could support the right to health by preserving resources for essential services that would otherwise be expended on less vital needs. Shoring up the financial stability of the whole health system, including the health insurance market, may improve availability and accessibility of health goods and services in the aggregate and have long-term economic and budgetary benefits. have long-term economic and budgetary benefits. The emphasis on ACOs and demonstration projects to help coordinate care additionally could yield benefits in the form of better quality of care simultaneously to achieving cost savings across the system.108 The IPAB recommendations for best practices and cost-effective treatments also could have a positive impact on quality.109 Other proposals — such as those designed to promote administrative streamlining and coordinate care and to reduce waste, fraud, and abuse110 — are less likely to negatively impact the right to health, as these efforts primarily improve affordability (and therefore access) without limiting coverage. The human rights implications of these cost containment initiatives are uncertain and create a tension between efforts to increase affordability and those that limit choice of health services covered through insurance. The consequential and unresolved question underlying all of these issues is whether the constraints imposed by these policies and their likely limitations on access will be obviated to a reasonable extent by advances in quality, affordability, and overall systemic stability. As much as the components of the ACA establish the groundwork for realizing the right to health, it is vital to note that some aspects of the ACA are not consistent with the right to health. The cost-control provisions that seek to limit access to certain types of services actually contravene key notions of an indi-

implicitly adopt many of the key norms established by the right to health as described in international law. The legislation accomplishes this without any recognition of legally justiciable rights for individuals to claim these goods and services under the rubric of the right to health. Nevertheless, the effects of these legislative changes on the actual attainment of the right to health may be significant.

Conclusion As the implementation of the ACA continues, several specific initiatives should be pursued to maximize its public health potential. Government officials and advocates for public health must continue to pursue public health strategies through the development of regulations implementing the ACA and to seek additional modifications through legislation that enhances public health goals. At the federal legislative level, history and current political realities suggest that broad health reform legislation is difficult to enact, but narrower strategic initiatives may receive congressional support once current budget concerns abate. These efforts could improve upon the new health system infrastructure initiated by the ACA. In the meantime, legislative efforts should focus on the continuation of funding for direct public health aspects of the law, such as the population health fund, expansion and extension of successful demonstration projects across state and national fora, and renewed efforts to partner with


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states to support public health programs and prevention initiatives that augment the goals of the ACA. At the federal regulatory level, regulation drafting and other implementation efforts provide a good short-term opportunity to refine the ACA consistent with goals and norms of public health and the right to health. For example, regulations and the development of the state insurance exchanges can expand coverage and improve system-wide access to health services. The biggest challenge will be that many of these efforts may be politically contentious. Despite the inapplicability in the United States of international human rights legal standards for the right to health, the right to health as described in international law provides a useful yardstick to measure current health reform proposals with respect to human rights. This analysis demonstrates that the ACA does advance the realization of the right to health in significant ways, despite the fact that the United States will continue to fall short on many important measures of the right to health even if the ACA is implemented in a way that maximizes the public health and right-tohealth aspects described above. Importantly, the ACA changes the social contract, establishing a new norm of universal health insurance with a subtext that everyone deserves access to basic health care, even if not recognized as a constitutional or human right. This is good for public health and also may be an opening for a more direct discussion about the right to health in the United States in the future. Health reform advocates should not, however, abandon right-based perspectives in future efforts to reform and improve the United States health care and public health systems. The Obama Administration and Congress opted to avoid a rights-based model for health reform with the ACA. The political calculus behind this strategy assumes, probably correctly, that the traditional antipathy for “positive” rights would doom any effort that explicitly includes these rights as a basis for legislation. However, rights-based arguments provide a solid moral justification for expanding access and quality within the health care system. The decision to frame the debate around process and stability (e.g., “health reform will expand care and make our system more affordable”) instead of grounding health reform in values (e.g., “health reform is necessary to protect the fundamental human right to health”) diluted the moral imperative of expanding access to health goods and services through universal health insurance or other more sweeping reforms. When health ceases to be perceived as a right and instead becomes an option or a privilege, it loses much of its moral gravity and becomes harder to persuasively justify.

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A different, but related, question to consider is whether the changes set into motion by the passage and implementation of the ACA provide a more fertile ground for future recognition of the right to health in the United States. This outcome seems far less likely, given the historical reluctance of the United States to recognize economic, social, and cultural rights through legislation or jurisprudential interpretation. Since the ACA was not designed as a bill to comprehensively restructure the health system in the United States (despite what its critics may allege) or as an effort to comply with the right to health, the progress made under the legislation toward advancing public health goals or the right to health is ultimately fragmentary and incomplete. Many important aspects of the right to health remain elusive in the United States, and the potential for more direct public health activity at the federal level remains underexplored. Yet the ACA makes important progress in advancing both public health and the right to health despite its shortcomings and promises a future that moves closer to the ideal of good health for all in the United States. Acknowledgements

This article is based in part on the John F. Roatch Global Lecture on Social Policy and Practice delivered by Professor Gable at Arizona State University in March 2010. The author would like to thank David Standish, Kaitlin Jeziak, Ashley Braun, and Lauren Andary for helpful research assistance.

References

1. Patient Protections and Affordable Care Act, P.L. 111-148 (signed signed into law March 23, 2010). 2. Id., at §§ 1501, 1502. 3. Id., at § 4002. 4. Id., at § 4003. 5. Id., at § 4205. 6. Id., at §§ 2601, 2704-2707, 3126, 4206, 4306, 5304, 5507, 6112, 6114, 10504. 7. L. O. Gostin et al., “Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population’s Wellbeing,” Pennsylvania Law Review (forthcoming 2011). 8. C. W. Copeland, “Rulemaking Requirements and Authorities in the Patient Protection and Affordable Care Act (PPACA),” Congressional Research Service, Report R41180 (Feb. 18, 2011). 9. See, generally, J. Quadagno, One Nation, Uninsured (New York: Oxford University Press, 2005); P. Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982). 10. Id. 11. T. Skocpol and P. Seliger Keenan, “Cross Pressures: The Contemporary Politics of Health Reform,” in D. Mechanic et al., eds., Policy Challenges in Modern Health Care (Piscataway, NJ: Rutgers University Press 2005): at 27. 12. P.L. 104-191 (1996). 13. P.L. 105-33 (1997). 14. P.L. 108-173 (2003). 15. Report by the Assistant Secretary for Planning and Evaluation for Health and Human Services, Effects of Health Care Spending on the U.S. Economy (2005), available at (last visited July 8, 2011) (“Since 1998, health care spending has increased at faster rate


Lance Gable of growth than has gross domestic product [GDP], inflation, and population”). 16. G. F. Anderson and B. K. Frogner, “Health Spending In OECD Countries: Obtaining Value Per Dollar,” Health Affairs 27, no. 6 (2008): 1718-1727; Centers for Medicare and Medicaid Services, National Health Expenditures, 2007, Office of the Actuary, National Health Statistics Group (2007); Organisation for Economic Co-operation and Development (OECD), OECD Health Data 2009: Statistics and Indicators for 30 Countries (2009). 17. WHO, World Health Statistics 2009 (2009). 18. The Commonwealth Fund Commission on a High Performance Health System, Why Not the Best? Results from the National Scorecard on U.S. Health System Performance (2008). 19. S. C. Kulkarni et al., “Falling Behind: Life Expectancy in U.S. Counties from 2000 to 2007 in an International Context,” Population Health Metrics 9, no. 16 (forthcoming 2011). 20. U.S. Census Bureau, Current Population Survey, 2008 and 2009 Annual Social and Economic Supplements (2009). 21. J. Cohn, Sick: The Untold Story of America’s Health Care Crisis – and the People Who Pay the Price (New York: Harper Collins Publishers, 2007). 22. Commonwealth Fund, Exhibits: The Health Insurance Provisions of the 2009 Congressional Health Reform Bills: Implications for Coverage, Affordability, and Costs (2009), available at (last visited June 27, 2011). 23. See PPACA, supra note 1. 24. Senator Harkin made a particularly strong appeal for the passage of the ACA citing the many benefits to public health, and even claiming the Bill would create a “right to health” during the senate floor debate on December 21, 2009. 155 Cong. Rec. S13661 (daily ed. Dec. 21, 2009) (statement of Sen. Harkin). However, during that day’s debate, there are only seven references to “public health”, 21 references to “wellness”, 0 references to “population health”, and an overwhelming 266 references to “insurance” (30 of which to insurance companies) throughout the day’s speakers. Id., at 13661-13695. This pattern is repeated throughout the debate materials. 25. D. Eggan, “‘Single-Payer’ Supporters Challenge Democrats,” Washington Post, June 6, 2009, available at (last visited July 8, 2011). 26. S. G. Stolberg, “Public Option in Health Plan May be Dropped,” New York Times, August 16, 2009, available at (last visited July 8, 2011). 27. B. Obama, “Remarks by the President to a Joint Session of Congress on Health Care,” 2009, available at (last visited June 28, 2011). 28. Id. 29. A. E. Yamin, “The Right to Health Under International Law and Its Relevance to the United States,” American Journal of Public Health 95, no. 7 1156–1161 (2005): 1156-1161. 30. P. Alston, “Putting Economic, Social, and Cultural Rights Back on the Agenda in the United States,” in W. F. Schultz, ed., The Future of Human Rights (Philadelphia: University of Pennsylvania Press, 2008). 31. H. Lewis, “‘New’ Human Rights: U.S. Ambivalence toward the International Economic and Social Rights Framework,” in C. Soohoo, C. Albisa, and M. Davis, eds., Bringing Human Rights Home (Westport, Connecticut: Praeger, 2009). 32. H. H. Koh and K. G. Sebelius, “Promoting Prevention through the Affordable Care Act,” New England Journal of Medicine 363, no. 14 (2010): 1296-1299. 33. 42 U.S.C. 300u-10 (2011).

34. Department of Health and Human Services, National Prevention Strategy (2011), available at (last visited July 8, 2011). 35. 42 U.S.C. 300u-11 (2011). 36. P.L. 111-148, § 6302. 37. Id., at § 2601. 38. Id., at §§ 10503, 4101, 4201. 39. Id., at § 4004. 40. Id., at §§ 1002, 1103. 41. Id., at §§ 3507, 5507. 42. Id., at § 4205. 43. Id., at §§ 4103, 4106. 44. Id., at § 1001. 45. See 42 U.S.C. 280g-10, 300u-12. 46. G. Shearer, APHA Issue Brief – Prevention Provisions in the Affordable Care Act (October 2010), available at (last visited July 8, 2011). 47. P.L. 111-148, §§ 1101, 1201 (Amending PHSA § 2704), § 1001 (Amending PHSA §§ 2711, 2712). 48. Id., at § 1501 (Amending IRC § 5000A). 49. Id., at § 1513 (Amending IRC § 4980H). 50. See M. A. Hall, “Commerce Clause Challenges to Health Care Reform,” Pennsylvania Law Review 159, no. 6 (2011): 18251872 (arguing that the individual mandate is valid constitutionally), and R. E. Barnett, “Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional,” New York University Journal of Law & Liberty 5, no. 3 (2010): 581-637 (making the counter argument). 51. P.L. 111-148, §1401 (Amending I.R.C. § 36B). 52. Id., at § 1311. 53. Id., at § 1201, Amending PHSA § 2707, minimum set by § 1302(a). 54. Id., at §§ 2001, 3301, 1333. 55. See Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp.2d 768 (holding the individual mandate exceeded congressional scope under the commerce clause); Florida ex rel. Bondi v. Dept. Health and Human Services, --- F.Supp.2d ----, 2011 WL 285683 N.D.Fla., 2011 (finding same and declaring the entire statute unconstitutional). 56. A. Chandra et al., “The Importance of the Individual Mandate – Evidence from Massachusetts,” New England Journal of Medicine 364, no. 4 (2011): 293-295. 57. J. Oberlander, “Throwing Darts: Americans’ Elusive Search for Health Care Cost Control,” Journal of Health Politics, Policy & Law 36, no. 3 (2011): 477-484. 58. P.L. 111-148, §§ 1104, 1413. 59. Id., at § 9001 (Amending IRC § 1513). 60. See Oberlander, supra note 57. 61. P.L. 111-148, § 3022, supra note 5. 62. Id., at § 3403 (Amending SSA § 1899A). 63. American Medical Association, “News: AMA Physicians Send a Message to Congress: Stop Medicare Meltdown,” June 13, 2010, available at (last visited July 7, 2011.) 64. See discussion supra of “Health Care Reform in the United States: The Perennial Struggle for Common Ground.” 65. See Yamin, supra note 29; E. D. Kinney, “Recognition of the International Human Right to Health and Health Care in the United States,” Rutgers Law Review 60, no. 2 (2008): 335-379; J. Mann et al., “Health and Human Rights,” Health & Human Rights 7 no. 1 (1994): 6-23. 66. World Health Organization, The Constitution of the World Health Organization (1948). 67. L. Henkin, The Age of Rights (New York: Columbia University Press, 1990). 68. L. Henkin, How Nations Behave (New York: Columbia University Press, 1979). 69. United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), avail-


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S Y MPO SIUM able at (last visited July 7, 2011). 70. International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly resolution 2200A (XXI) of December 16, 1966, available at (last visited June 28, 2011). 71. U.N. Committee on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health, CESCR General Comment 14. 22d Sess., Agenda Item 3, U.N. Doc. E/C.12/2000/4. 2000 [hereinafter GC 14]. 72. Id., at para. 11. 73. Id., at paras. 53-56. 74. Id., at para. 34. 75. Id., at para. 35. 76. Id., at paras. 36-37. 77. Id., at para. 12. 78. Id. 79. Id. 80. Id. 81. L. Gable, “The Proliferation of Human Rights in Global Health Governance,” Journal of Law, Medicine & Ethics 35, no. 3 (2007): 534-544. 82. U.N. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (2008), Human Rights Council, 7th session, Agenda item 3, at 12, UN doc. A/HRC/7/11, January 31, 2008, at 12 [hereinafter “Special Rapporteur Health Systems Report”]. 83. See WHO, Everybody’s Business: Strengthening Health Systems to Improve Health Outcomes (2007), available at (last visited July 8, 2011). 84. G. Backman, P. Hunt, R. Kholsa, C. Jaramilla-Strouss, B. Mikuria Fikre, and C. Rumble et al., “Health Systems and the Right to Health: An Assessment of 194 Countries,” The Lancet 372, no. 9655 (2008): 2047-2085; P. Hunt and G. Backman, “Health Systems and the Right to the Highest Attainable Stan-

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dard of Health,” Health and Human Rights 10, no. 1 (2008): 81-92. 85. 42 U.S.C. 300u-11 (2011). 86. P.L. 111-148, § 2601. 87. Id., at § 6302. 88. Id., at §§ 10503, 4101, 4201. 89. Id., at, § 4004. 90. Id., at §§ 1002, 1103, 3507, 4205, 5507. 91. Id., at §§ 4103, 4106. 92. Id., at § 1001. 93. See Shearer, supra note 46. 94. See Special Rapporteur Health Systems Report, para. 63 (stating that “often legitimate but competing claims aris[e] from the same human right”). 95. GC 14, at para. 19. 96. P.L. 111-148, §§ 1101, 1201 (Amending PHSA § 2704), § 1001 (Amending PHSA §§ 2711, 2712). 97. GC 14, para. 35. 98. Id., at para. 12. 99. P.L. 111-148, §§ 1501 (Amending IRC § 5000A), § 1513 (Amending IRC § 4980H). 100. Id., at §1401 (Amending I.R.C. §36B). 101. Id., at § 1311. 102. Id., at § 1201, Amending PHSA § 2707, minimum set by § 1302(a). 103. Special Rapporteur Health Systems Report, para 52. 104. P.L. 111-148, § 1303 (42 USC 18023). 105. Id., at §§ 2001, 3301, 1333. 106. Id., at §§ 1104, 1413. 107. Id., at § 9001 (Amending IRC § 1513). 108. Id., at §§ 3022, 3403. 109. Id., at § 3403 (Amending SSA § 1899A). 110. Id., at §§ 1104, 1413.
