What is the meaning of health? Constitutional implications of defining "medical necessity" and "essential health benefits" under the Affordable Care Act.

I. INTRODUCTION When the government decides to assume a major role in providing and paying for healthcare, the government also has to decide exactly what constitutes appropriate, reasonable, or essential healthcare under its program. Congress, of course, recognized this necessity when it passed the Patient Protection and Affordable Care Act (ACA), and the statute itself provides authority to the Secretary of Health and Human Services (HHS) to determine the "essential health benefits" that must be covered under the ACA beginning in 2014, both by insurers offering plans within governmentally sponsored exchanges and on the individual and smallemployer markets outside the exchanges.1 In a decision that was hailed as both "politically astute" and problematic for the goals that the ACA itself was supposed to accomplish,2 HHS shunted offthe task of defining the term "essential health benefits" to the individual states.3 The states' authority to choose a package of essential benefits for their citizens is not totally open-ended, of course. States will be required to specify a "benchmark plan" within parameters specified by HHS, to which other approved plans must be "substantially equal."4 In addition, every package of essential benefits must encompass ten different categories of benefits that have been specified in the ACA itself, and nondiscrimination norms apply.5 Nonetheless, states end up with considerable discretion under what appears to be a political compromise. Needless to say, the crafters of this plan were aware of the intensely fraught nature of any attempt to define the essence of "health," "healthcare," or "medical necessity."6 Such decisions affect the lives and choices of the individuals covered by regulated insurance plans, as well as the bottom line of the insurers themselves. The breadth and precise nature of the ACA's requirements will directly affect the Act's ability to meet its stated goals of providing comprehensive coverage for the vast majority of Americans and controlling healthcare costs.7 And in certain domains- particularly reproductive healthcare-the decision to include or exclude a particular service may carry political consequences and implicate value choices in a way that is particularly salient. In August 2011, for example, substantial controversy accompanied HHS's decision to adopt the Institute of Medicine's (IOM) recommendation that all new private health plans must, under the ACA, cover the full range of contraceptive options along with other preventive care for women.8 The debate became more heated when the Obama Administration announced its intention to maintain this requirement with only a very limited "conscience clause," which exempts organizations that have religious objections to contraception but which is too narrow to cover some entities, such as hospitals and universities, that are operated by those religious groups.9 While some condemned the administration's decision as an assault on religious freedom, HHS cast its determination in terms of protecting women's health.10 This controversy highlights the extraordinarily hazy contours around the definition of health in a variety of legal and policy contexts and the significance of that definition for future debates surrounding the ACA. While acknowledging that numerous social, economic, and public health consequences may attach to the definition of medical necessity, this Article focuses primarily on the constitutional issues that may arise, depending on how broadly or narrowly the government defines concepts such as "medical necessity" and "essential health benefits." At first glance it may appear that, beyond the debate about the constitutionality of the individual mandate, a governmental benefit program like the ACA is not likely to give rise to claims that an individual constitutional right has been violated. This Article speculates, however, that the unprecedented and expansive role of the government in directing individuals' healthcare portended by the ACA may provoke a re-evaluation of some apparently settled constitutional principles. …