Legislating a Negative Right to Health: Health Impact Assessments

Abstract

What if there were a way to value health as a right, but maintain fidelity to the American tradition of rights as negative liberties from state action? What if this tool also addressed a shortcoming of cost-benefit analysis, namely, the crowd-out of non-fungible values like rights and distribution? I argue in this article that Health Impact Assessments (HIAs) would accomplish both these things. I make a strategic case in favor of requiring HIAs for all federal legislation and regulation, even for those actions outside of what is traditionally considered the health sector. We have ever-mounting evidence that housing, education, transportation, incarceration, taxation, employment, agricultural, energy, gun-safety, trade and other policies help constitute our social determinants of health and can be just as important as medical care in shaping human morbidity and mortality. Therefore all of our policies across these sectors should be assessed for whether they burden human health. When they do, those policies must be accompanied by some individually enforceable showing of sufficient purpose and least-restrictive means to justify the burden. 

These proposed justification requirements derive from a three-part model of rights-logic that I distill from various overlapping accounts of rights, particularly rights as proportionality.

Rights are characterized by:

1) a presumption that impingement on the favored value requires justification in terms of sufficient countervailing purpose,

2) a requirement that the rights-burdening action meet standards of fit, and

3) some degree of claimability.

These three properties are, I argue, a minimal set of attributes that constitute a value as a right and are characteristic not only of our constitutional rights, but also of the class of regulatory impact assessments (RIAs) to which HIA should be added. 

I contend that because our existing RIAs impose similar procedural requirements to protect values that compete with health, health should be placed on at least equal footing. I catalog our current RIAs and the rights-like protection they afford to a panoply of non-health values by documenting the presence of these three rights features in each RIA regime. Under the Paperwork Reduction Act, we enjoy freedom from government imposed paperwork. Small businesses are free from economic burdens under the Regulatory Flexibility Act. Thanks to the Religious Freedom Restoration Act, we have religious freedom beyond constitutional levels of protection. The Unfunded Mandates Reform Act grants states and localities freedom from economically burdensome federal mandates. Freedom from certain environmental or species preservation harms are enshrined in the National Environmental Protection Act and the Endangered Species Act. Various executive orders and appropriations riders protect property owners from subconstitutional regulatory takings, and protect the autonomy of “traditional” families. Yet we do not enjoy liberty from government action that burdens people’s health. There is a glaring gap where we should be protecting basic human well-being. Therefore, I offer a blueprint for legislation that would establish HIAs, borrowing elements from RIAs we currently have in place, and propose that this is where we should begin to nurture a right to health in American law.