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Publication Date


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University of Pennsylvania Law Review


healthcare, Patient Protection and Affordable Care Act (PPACA), individual mandate


This Article first draws out the freedom of health from Supreme Court precedent and demonstrates that, like other substantive constitutional rights, the freedom of health is a negative liberty that must be balanced against legitimate and compelling regulatory projects. The Article then applies that understanding of the freedom to evaluate some proposed and actual health care regulations that have made headline news in the last decade. I consider the constitutionality of the phantom death panels, the HlNl vaccine distribution program, the FDA's restrictions on access to experimental drugs, PPACA's obesity and smoking regulations, and, of course, PPACA's individual mandate. Should those programs and regulations be constitutionally permissible under a Fourteenth Amendment freedom of health?

This Article proceeds as follows. Part I fleshes out the freedom of health, identifying its foundations in existing American precedent and describing its differences from the "right to health" in international law. Part II considers the controversial proposals and enactments that have made news in recent health care reform debates, using analysis of those issues to develop the framework for enforcing a freedom of health.