Health Care: Constitutional Rights And Legislative Powers
.Health Care: Constitutional Rights andLegislative PowersKathleen S. SwendimanLegislative AttorneyApril 5, 2010Congressional Research Service7-5700www.crs.govR40846CRS Report for CongressPrepared for Members and Committees of Congressc11173008
.Health Care: Constitutional Rights and Legislative PowersSummaryThe health care reform debate raises many complex issues including those of coverage,accessibility, cost, accountability, and quality of health care. Underlying these policyconsiderations are issues regarding the status of health care as a constitutional or legal right. Thisreport analyzes constitutional and legal issues pertaining to a right to health care, as well as thepower of Congress to enact and fund health care programs. Following the recent passage of thePatient Protection and Affordable Care Act, P.L. 111-148, legal issues have been raised regardingthe power of Congress to mandate that individuals purchase health insurance, and the ability ofstates to “nullify” or “opt out” of such a requirement. These issues are also discussed.The United States Constitution does not set forth an explicit right to health care. While theSupreme Court would likely find that the Constitution provides a right to obtain health careservices at one’s own expense from willing providers, the Supreme Court has never interpretedthe Constitution as guaranteeing a right to health care services from the government for thosewho cannot afford it. The Supreme Court has, however, held that the government has anobligation to provide medical care in certain limited circumstances, such as for prisoners.While the United States Constitution and Supreme Court interpretations do not identify aconstitutional right to health care for those who cannot afford it, Congress has enacted numerousstatutes, such as Medicare, Medicaid, and the Children’s Health Insurance Program, that establishand define specific statutory rights of individuals to receive health care services from thegovernment. As a major component of many health care entitlement statutes, Congress hasprovided funding to pay for the health services provided under law. Most of these statutes havebeen enacted pursuant to Congress’s authority to “make all Laws which shall be necessary andproper” to carry out its mandate “to provide for the general Welfare.” The power to spendfor the general welfare is one of the broadest grants of authority to Congress in the U.S.Constitution. The Supreme Court accords considerable deference to a legislative decision byCongress that a particular health care spending program provides for the general welfare.Recently, Congress enacted comprehensive health care reform legislation, P.L. 111-148, whichincludes a requirement that individuals purchase health insurance. Several lawsuits have beenfiled challenging the power of Congress to enact such a mandate under the Commerce Clause ofthe U.S. Constitution. In addition, several states have passed laws attempting to “nullify” or “optout” of the federal individual health insurance mandate in Section 1501 of P.L. 111-148, whichgoes into effect in 2014. Direct conflicts between federal and state laws would raise constitutionalissues which are likely to be resolved in favor of the federal law under the Supremacy Clause ofthe U.S. Constitution.A number of state constitutions contain provisions relating to health and the provision of healthcare services. State constitutions may provide constitutional rights that are more expansive thanthose found under the federal Constitution since federal rights set the minimum standards for thestates.Congressional Research Service
.Health Care: Constitutional Rights and Legislative PowersContentsHealth Care Rights Under the U.S. Constitution .1Explicit Rights in the U.S. Constitution .1The Right to Health Care at the Government’s Expense.2Substantive Due Process: Impact on Fundamental Rights .2Equal Protection: Wealth as a “Suspect Class”.4Exception: Under Government Control .5Federal Power to Provide for and Fund Health Care Programs.6The Taxing and Spending Power .7Federally Funded Health Care Programs .8The Individual Mandate to Purchase Health Insurance Under the Patient Protectionand Affordable Care Act.9Lawsuits Challenging the Constitutionality of the Individual Health InsuranceMandate. 10State Attempts to “Nullify” or “Opt Out” of Federal Health Care ReformRequirements . 11State Constitutions and the Provision of Health Care Services . 12ContactsAuthor Contact Information . 13Congressional Research Service
.Health Care: Constitutional Rights and Legislative PowersHealth Care Rights Under the U.S. ConstitutionThe health care reform debate raises many complex issues including those of coverage,accessibility, cost, accountability, and quality of health care. Underlying these policyconsiderations are issues regarding the status of health or health care as a moral, legal, orconstitutional right. It may be useful to distinguish between a right to health and a right to healthcare.1 An often cited definition of “health” from the World Health Organization describes healthas “a state of complete physical, mental and social wellbeing and not merely the absence ofdisease or infirmity.”2 “Health care” connotes the means for the achievement of health, as in the“care, services or supplies related to the health of an individual.”3 For purposes of this report,discussion will be limited to constitutional and legal issues pertaining to a right to health care.Numerous questions arise concerning the parameters of a “right to health care.” If each individualhas a right to health care, how much care does a person have a right to and from whom? Wouldequality of access be a component of such a right? Do federal or state governments have a duty toprovide health care services to the large numbers of medically uninsured persons? What kind ofhealth care system would fulfill a duty to provide health care? How should this duty be enforced?The debate on these and other questions may be informed by a summary of the scope of the rightto health care, particularly the right to access health care paid for by the government, under theU.S. Constitution and interpretations of the U.S. Supreme Court.4Explicit Rights in the U.S. ConstitutionThe United States Constitution does not explicitly address a right to health care. The words“health” or “medical care” do not appear anywhere in the text of the Constitution. The provisionsin the Constitution indicate that the framers were somewhat more concerned with guaranteeingfreedom from government, rather than with providing for specific rights to governmental servicessuch as for health care. The right to a jury trial, the writ of habeas corpus, protection for contracts,and protection against ex post facto laws were among the few individual rights explicitly set forthin the original Constitution.5 In 1791, the Bill of Rights was added to the Constitution, andadditional amendments were added following the Civil War, and thereafter. Most constitutionalamendments dealt with civil and political rights, not social and economic rights.6 However, therehave been proposals to add a specific right to health care as an amendment to the U.S.1See Lawrence O. Gostin, “Securing Health or Just Health Care? The Effect of the Health Care System on the Healthof America,” 39 St. Louis U. L.J. 7 (1994), and Lawrence O. Gostin, “The Right to Health: A Right to the HighestAttainable Standard of Health, 31 HASTINGS CENTER REPORT 29-10 (2001).2Constitution of the World Health Organization (2006), available at http://www.who.int/governance/eb/who constitution en.pdf.3Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 C.F.R. § 160.103.4This report does not analyze the scope of a right to health or health care under various international agreements orunder the governing documents of other countries. For further information see, e.g., Puneet K. Sandhu, “A Legal Rightto Health Care: What Can the United States Learn From Foreign Models of Health Rights Jurisprudence?” 95 Cal. L.Rev. 1151 (2007); and Marcela X. Berdion, “The Right to Health Care in the United States: Local Answers to GlobalResponsibilities,” 60 SMU Law Review 1633 (2007).5W. Kent Davis, “Answering Justice Ginsburg’s Charge that the Constitution is ‘Skimpy’ in Comparison to ourInternational Neighbors: A Comparison of Fundamental Rights in American and Foreign Law,” 39 S. Tex. L. Rev. 951,958 (1998).6Id. at 958-959.Congressional Research Service1
.Health Care: Constitutional Rights and Legislative PowersConstitution. For example, in 1944, President Franklin D. Roosevelt, in his State of the Unionaddress, advanced his idea of a “Second Bill of Rights” which would include “[t]he right toadequate medical care and the opportunity to achieve and enjoy good health.”7 More recently,Representative Jesse L. Jackson Jr. introduced H.J.Res. 30 on March 3, 2009, a bill whichproposes an amendment to the U.S. Constitution ensuring a right to health care. The proposedamendment reads, “Section 1. All persons shall enjoy the right to health care of equal highquality. Section 2. The Congress shall have power to enforce and implement this article byappropriate legislation.”The Right to Health Care at the Government’s ExpenseEven though the U.S. Constitution does not explicitly set forth a right to health care, the SupremeCourt’s decisions in the areas of the right to privacy and bodily integrity suggest the Constitutionimplicitly provides an individual the right to access health care services at one’s own expensefrom willing medical providers.8 However, issues regarding access to health care do not usuallyconcern access where a person has the means and ability to pay for health care, but rather involvesituations where a person cannot afford to pay for health care. The question becomes, not whetherone has a right to health care that one can pay for, but whether the government or some otherentity has the obligation to provide such care to those who cannot afford it.If the Supreme Court were to find an implicit right to health care for persons unable to pay forsuch care, it might do so either by finding that the Constitution implicitly guarantees such a right,or that a law which treats persons differently based on financial need creates a “suspectclassification.” In either case, the Court would evaluate the constitutionality of legislativeenactments that unduly burden such rights or classifications under its “strict scrutiny” standard ofreview, thus according the highest level of constitutional protection offered by the equalprotection guarantees of the Constitution. Absent a finding of an implicit fundamental right tohealth care for poor persons under the Constitution, or that wealth distinctions create a “suspectclass,” the Court would likely evaluate governmental actions involving health care using the lessrigorous “rational basis” standard of review. Most health care legislation would likely be upheld,as it has been, so long as the government can show that the legislation bears a rationalrelationship to a legitimate governmental interest.Substantive Due Process: Impact on Fundamental RightsDespite the lack of discussion of health care rights in the Constitution, arguments have been madethat the denial by the federal government of a minimal level of health care to poor personstransgresses the equal protection guarantees under the Constitution. While the equal protectionclause of the Fourteenth Amendment applies only to the states, similar equal protection principlesare applicable to the federal government through the Due Process Clause of the FifthAmendment.9 A litigant challenging a federal action has the burden of proving that the712 Pub. Papers 41 (Jan. 11, 1944).See Roe v. Wade, 410 U.S. 113 (1973) (constitutionally protected right to choose whether or not to terminate apregnancy), and Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990) (constitutional right to refuse medicaltreatment that sustains life), both of which involve a right to bodily integrity that may be extended to a person seekinghealth care services at his or her own expense.9See, generally, discussion regarding fundamental rights in CRS, United States Constitution: Analysis andInterpretation, by Kenneth R. Thomas, p. 1763 et seq.8Congressional Research Service2
.Health Care: Constitutional Rights and Legislative Powersgovernmental action places an undue burden on the exercise of an individual’s fundamental right.The standard of review used in cases involving fundamental rights is called “strict scrutiny.”Using this heightened standard of review, if the Court determines that a fundamental right hasbeen unduly burdened, the governmental action will only be upheld if the government candemonstrate that the action is necessary to achieve a compelling governmental interest.10The Supreme
health care for poor persons under the Constitution, or that wealth distinctions create a “suspect class,” the Court would likely evaluate governmental actions involving health care using the less rigorous “rational basis” standard of review. Most health care legislation would likely be upheld, as it has been, so long as the government can show that the legislation bears a rational .
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