Health: Policy or Law? A Population-Based Analysis of the Supreme Court’s ACA Cases

Posted: 9 Dec 2016 Last revised: 6 Jun 2017

See all articles by Wendy E. Parmet

Wendy E. Parmet

Northeastern University - School of Law

Date Written: 2016

Abstract

This paper, written for a symposium issue of the Journal of Health Politics, Policy and Law, entitled “Perspectives on the Development of Population Health Law,” argues that public health is a legal norm, and that its recognition by courts as such affects the fate of health policies when they are challenged in court. The paper begins by explaining what it means to treat health as a “legal norm” in contrast to a policy objective, and why courts have traditionally recognized health as a legal norm. The paper then turns to the Supreme Court’s three major Affordable Care Act (ACA) cases, NFIB v. Sebelius, Burwell v. Hobby Lobby, and Burwell v. King. In the first two cases, the health norm showed signs of erosion, as the Court treated Congress’ health aims as mere “policy” that had to be subordinated to constitutional principles. In Burwell v. King, however, the health norm reappeared in an opinion that treated Congress’ health goals seriously. The paper concludes by considering why the Court may have recognized the health norm in King, but not in the prior two ACA cases, and what they may tell us about the resilience of the norm and the fate of future health policies.

Keywords: Affordable Care Act, ACA

Suggested Citation

Parmet, Wendy E., Health: Policy or Law? A Population-Based Analysis of the Supreme Court’s ACA Cases (2016). Journal of Health Politics, Policy and Law, Vol. 41, No. 6, pp. 1061-1081 (2016); Northeastern University School of Law Research Paper No. 283-2016. Available at SSRN: https://ssrn.com/abstract=2883173

Wendy E. Parmet (Contact Author)

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