Rights and Regulation: The Freedom of Health in Economic Perspective

Abstract

Particularly since 2006, when a panel of the D.C. Circuit Court of Appeals found that patients have a fundamental liberty interest in access to experimental drugs (later overturned en banc), health law scholars have debated the usefulness and propriety of recognizing a constitutional liberty interest in healthcare autonomy. Unlike the international human right to health, the proposed constitutional rule would be a so-called “negative” right - a “freedom of health” rather than a “right to health,” which would operate much like the freedom of speech. This paper proposes a welfare-economic justification for recognizing individual substantive freedoms of this kind and for extending such a freedom to protect healthcare markets. The justification centers on two core characteristics of constitutionally protected domains: Knightean uncertainty and moral ambivalence. The three basic claims that make up the justification are: (1) that uncertainty and ambivalence are predominant characteristics of healthcare markets, just as they are predominant characteristics of markets for other constitutionally protected activities - - amely speech, religion, association, reproduction, and parenting; (2) that high degrees of uncertainty and ambivalence preclude regulatory success according to all standard metrics and that we should therefore avoid and discourage regulation in such markets; and (3) that recognition of an individual substantive right (of the kind typically enforced in American constitutional law) is an elegant means of addressing this problem because it creates a barrier to regulation that can be surmounted if a particular regulatory intervention corrects a known harm or enacts a moral consensus - if it is “tailored to serve a state interest.”