Gregory Curfman, King v Burwell and a Right to Health Care, Health Affairs Blog, June 26th, 2015. Available at: http://healthaffairs.org/blog/2015/06/26/king-v-burwell-and-a-right-to-health-care/

Do Americans have a fundamental right to health care? This oft-debated question is timely given the Supreme Court’s stunning ruling yesterday in King v. Burwell, in which health insurance subsidies on the federal exchange were upheld in a 6-3 decision.

Here I will place the King v. Burwell opinion in the larger context of to what extent Americans are provided a right to care. The Constitution itself does not stipulate a general right to health care, but a patchwork of rights to certain aspects of health care have emerged over time from both constitutional and statutory law.

Constitutional Law

Reproductive Health

In Griswold v. Connecticut (1965), for example, the Supreme Court found a right of privacy in the Due Process Clause of the 14th Amendment and invalidated a state law against the use of contraceptive agents. Similarly, in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the Court identified a woman’s right to have an abortion, a liberty that, as in Griswold, was found in the 14th Amendment. In Casey, however, the Court permitted states to regulate abortion services as long as the regulations did not present an undue burden to women’s access to abortion services.

Thus, in the area of reproductive health, the Supreme Court has protected certain limited rights to reproductive care. The Court has consistently denied, however, that the government has an obligation to pay for reproductive care, and in another recent development, unless the Court issues a stay in Whole Women’s Health v. Cole, most of the abortion clinics in Texas will soon close down.

Health Care For Prisoners

The Court also established a right to health care for prisoners, a right that was found in the 8th Amendment against cruel and unusual punishment (Estelle v. Gamble, 1976; Brown v. Plata, 2011). In Brown v. PlataJustice Kennedy wrote, “Prisoners retain the essence of human dignity inherent in all persons,” and human dignity includes a right to adequate health care.

Statutory Law

In statutory law Congress has provided broad rights to health care for the elderly, disabled, people living in poverty, and children by establishing Medicare, Medicaid, and CHIP. Also, in 1986 Congress passed EMTALA (Emergency Medical Treatment and Active Labor Act), which requires Medicare-funded hospitals with emergency departments to provide appropriate, though limited, emergency and labor care.

Mental health parity implies a right to receive mental health services among patients with mental health conditions. Persons with mental illness are among the most vulnerable members of our society, yet it was not until 2013 that final regulations were released for the Mental Health Parity and addiction Equity Act (MHPAEA).

The law prohibits coverage for mental health conditions, including substance abuse, from being less comprehensive than coverage for medical or surgical conditions. This important law, which was a long time coming, provides a right to equal care for patients with medical and mental health problems, but the key going forward is how well compliance with the law will be enforced.

The Affordable Care Act

Legal challenges to the Affordable Care Act (ACA) have stripped away some of the expanded access to health care originally provided by the law. While the individual mandate survived a constitutional challenge in 2012 (NFIB v. Sebelius), the ACA’s mandate for states to expand Medicaid was overturned on the grounds that it was coercive, and despite the availability of generous federal funding, 21 states have as yet declined to undertake voluntary Medicaid expansion.

The ACA also extended a right to preventive health care by adopting a set of eight categories of preventive services recommended by the Institute of Medicine that must be covered by insurers without a copayment. While this was a significant step forward, in Burwell v. Hobby Lobby Stores Inc., the Supreme Court struck down mandated coverage for contraceptive services in certain circumstances as a violation of the Religious Freedom Restoration Act. When it comes to a right to preventive health services, the Court has left women with incomplete coverage.

The Supreme Court’s King V. Burwell Opinion

The Court’s opinion in King v. Burwell, validating the subsidies provided on the federal health insurance exchange, lends clear support for a right to health care. The Court recognized that the loss of subsidies would create severe instability in insurance markets and likely send them into a death spiral, a result that could not possibly have been intended by Congress.

Writing for the Court, Chief Justice John Roberts concluded, “Those (tax) credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.”

In the three cases to date involving the ACA, the Court curtailed access to care by overturning mandated Medicaid expansion and contraceptive coverage, but endorsed expanded access in validating the individual mandate and the premium subsidies. Thus, the halting approach to declaring a universal right to health care for all Americans has continued in the Supreme Court.