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University of Pennsylvania Law School




What would have happened if the Patient Protection and Affordable Care Act (PPACA) really had authorized government “death panels” that would decide whether an elderly patient could get treatment? Leaving aside commerce clause and other constraints particular to Congress, would that kind of direct healthcare 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; direct rationing of that kind would violate a constitutional “freedom of health” that is nascent in Supreme Court jurisprudence. Based on that logic, I argue further that the substantive due process analysis of the Patient Protection and Affordable Care Act’s so-called “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 the Lochner era is dead.

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