55 Pages Posted: 19 Feb 2013 Last revised: 7 Mar 2013
Date Written: 2013
The Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. The ambition and the degree of societal and political debate leading up to the Act’s passage suggests it is a “superstatute,” a rare breed of statute that creates rights and institutions typically thought to be the province of constitutions. Nevertheless, the ACA’s right to health care is fragile and risks falling short of becoming a durable right. The ACA may end up as a “quasi-superstatute,” a statute that aspires but fails to become a superstatute through a failure of political and public entrenchment. The problem is that the right to health care is to be delivered largely through changes to the private health insurance market, requiring the cooperation of reluctant states, industry, and individuals. The ACA’s right to health care faces significant political and market challenges that threaten to weaken its benefits in the public’s mind. This vulnerability is concentrated early in its lifespan, and if it survives these early years, the endowment effect may strengthen the right’s durability as its benefits take hold. The risk of becoming a “quasi-superstatute” highlights the importance of structuring such reforms to achieve durability.
Keywords: ACA, Affordable Care Act, rights, health insurance, uninsured, superstatute, health care, right to health care, endowment effect, durable right, law, health law, statute
JEL Classification: I10, I18, I19, K00, K30, K19, K32, K39
Suggested Citation: Suggested Citation
Fuse Brown, Erin C., Developing a Durable Right to Health Care (2013). Minnesota Journal of Law, Science & Technology, Vol. 14, No. 1, 2013; Georgia State University College of Law, Legal Studies Research Paper No. 2013-06. Available at SSRN: https://ssrn.com/abstract=2217839