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Full-Text Articles in Law
The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff
The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff
Law Faculty Articles and Essays
There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …
The Freedom Of Health, Abigail R. Moncrieff
The Freedom Of Health, Abigail R. Moncrieff
Law Faculty Articles and Essays
This Article first draws out the freedom of health from Supreme Court precedent and demonstrates that, like other substantive constitutional rights, the freedom of health is a negative liberty that must be balanced against legitimate and compelling regulatory projects. The Article then applies that understanding of the freedom to evaluate some proposed and actual health care regulations that have made headline news in the last decade. I consider the constitutionality of the phantom death panels, the HlNl vaccine distribution program, the FDA's restrictions on access to experimental drugs, PPACA's obesity and smoking regulations, and, of course, PPACA's individual mandate. Should …