Litigating the ACA: securing the right to health within a framework of negative rights.

I. INTRODUCTION President Obama entered the White House with a clearly defined goal: expanding healthcare coverage to all Americans. He marketed this goal to the public and Congress as a "moral imperative," as well as a necessary means to achieving a "more effective and efficient health care system."1 Yet as reform proceeded, it became clear that the latter was the preeminent, if not only, goal of most legislators. While the President's rhetoric was essential in drumming up support for historic reform, it reflects an appreciation for human rights that many Americans do not share. As Congress focused on the failings of the most expensive healthcare system in the world, it became evident that the right to health (a fundamental and nonderogable human right under international law) would not be a factor in the new legislation. This defining characteristic of reform may, paradoxically, prove invaluable in preserving the law. In challenging the Patient Protection and Affordable Care Act (ACA), litigators, politicians, and judges have focused on principles of federalism, asserting that Congress has overstepped its authority in enacting such landmark legislation. As opponents hone in on the insurance mandate and Medicaid expansion, they condemn the unprecedented expansion of coverage that moves America closer to realizing a universal right to health. The government has an extremely strong argument that these provisions are properly grounded within Congress's authority to regulate commerce or within its taxing and spending power, although legal scholars differ on the Supreme Court's projected interpretation of the matter. Still, the law's basis in economic regulation, and not rights, will, if anything, prove to be its saving element. The ACA is a landmark legislative move toward securing the right to health for Americans, even though it does not refer to such a right. Nevertheless, it theoretically grants access to essential healthcare for all citizens.2 In other nations, improved access to healthcare has rested largely on judicial and legislative acknowledgement of the universal right to health. Courts in the United States, however, have uniformly rejected any assertion of this principle. This Article queries whether healthcare reform advocates should tailor their efforts to the uniquely American refusal to recognize social and economic rights, or continue to push the United States to acknowledge the existence of a right to health. In other words, rights rhetoric may not be the most efficient way to advance individual and population health, given the constitutional structure, political tone, and judicial precedent that currently define U.S. health policy. II. THE RIGHT TO HEALTH A. INTERNATIONAL LAW The Universal Declaration of Human Rights (UDHR) first declared an international right to health in 1948.3 Subsequent international instruments, including, among others,4 the International Covenant on Economic, Social and Cultural Rights, implemented this right.5 Regional instruments,6 as well as most states undergoing constitutional construction since the UDHR, include a right to health as a tenant of human rights.7 Regional and international tribunals actively enforce this right. For example, the African Commission on Human and People's Rights held Gambia in violation of the African Charter on Human and People's Rights for its antiquated mental health legislation that allowed for indefinite detention of a mentally ill person without the diagnosis by a mental health professional. The legislation did not provide treatment necessary for patients to "sustain their optimum level of independence and performance."8 The African Commission ordered the government to, among other things, provide adequate medical care and resources for persons suffering from mental health illness to achieve maximum health.9 In another example, the European Court of Human Rights held that Ireland failed to uphold the equality of the right to health for a fetus and woman, as required under its Constitution,10 by refusing to allow a cancer patient to abort her fetus out of concern for the patient's life. …