1 Ronald Dworkin, Taking Rights Seriously (1977) [hereinafter Dworkin, TRS].

2 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 135-36 (2000). See infra text accompanying notes 131-64.

3 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 535 (2001). See infra text accompanying notes 165-236.

4 Lorillard, 533 U.S. at 566.

5 Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011). See infra text accompanying notes 237-283.

6 Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2604-07 (2012).

7 Id. In a previous article, I discussed three more cases with these features. Christina, S. Ho, Exceptions Meet Absolutism: Outlawing Governmental Underreach in Health Law, 93 Denv. L. Rev. 109 (2015)Google Scholar.

8 Others have argued that rights frameworks, far from promoting health or well-being, have been co-opted by those who are relatively privileged by status quo arrangements and then used to detract from collective efforts for social justice. See, e.g., Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique 178 (Wendy Brown & Janet Halley eds., 2002); Paul, D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013)Google Scholar; Peter, Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563 (1984)Google Scholar; Morton, J. Horwitz, Rights, 23 Harv. C.R.-C.L. L. Rev. 393 (1988)Google Scholar; Mark, Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984)Google Scholar; Mark, Tushnet, The Critique of Rights, 47 SMU L. Rev. 23 (1993)Google Scholar; Robin, West, A Tale of Two Rights, 94 B.U. L. Rev. 893 (2014)Google Scholar; Robin, L. West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713 (2011)Google Scholar; Peter, Westen, The Rueful Rhetoric of “Rights”, 33 UCLA L. Rev. 977 (1986)Google Scholar.

9 Recent scholarly appraisals have judged U.S. health rights to be “unstable,” “weak,” and “elusive.” See Allison K. Hoffman, A Vision of an Emerging Right to Health Care in the United States: Expanding Health Care Equity Through Legislative Reform, in The Right to Health at the Public/Private Divide: A Global Comparative Study 345 (Colleen M. Flood & Aeyal Gross eds., 2014) (describing how even legislated rights are often weakened by courts); David, Orentlicher, Rights to Healthcare in the United States: Inherently Unstable, 38 Am. J.L. & Med. 326 (2012)Google Scholar (documenting the ways in which the Affordable Care Act fails to change the historical weakness of the right to health in the U.S.); Jennifer, Prah Ruger et al., The Elusive Right to Health Care Under U.S. Law, 372 New Eng. J. Med. 2558 (2015)Google Scholar.

10 See, e.g., Hoffman, supra note 9 (explaining the difficulty of enforcing Medicaid in court, jurisdictional bars to justiciability of Medicare claims, and the role of ERISA preemption in denying judicial remedies for group coverage claims).

11 See, Elizabeth, Weeks Leonard, State Constitutionalism and the Right to Health Care, 12 U. PA. J. Const. L. 1325 (2010)Google Scholar.

12 I use “health” in the phrase “right to health” to mean a right not to health outcomes, but rather health services, defined broadly to include health-promoting conditions as well. See infra text accompanying note 96.

13 See infra notes 65-70 and accompanying text for how the distinctive function of rights is to achieve this type of prioritization, according to Dworkin and Waldron.

14 Id.

15 See, e.g., infra sections II.B.1.c, II.C.1.c, and II.C.2.c for how courts interfered with other branches'exercise of their authorities to articulate health protections and entitlements.

16 Jeremy Waldron is the one who dubs Dworkin's argument as one of “lexical priority.” Jeremy, Waldron, Rights in Conflict, 99 Ethics 503 (1989)Google Scholar. The notion of lexical or serial prioritization is explained as “an order which requires us to satisfy the first principle in the ordering before we can move on to the second …. A serial ordering avoids, then, having to balance principles at all; those earlier in the ordering have an absolute weight, so to speak, with respect to later ones ….” John Rawls, A Theory of Justice 43 (1971).

17 See, e.g., United States v. Ben-Hur, 20 F.3d 313, 318 (1994) (citing Mitchell Aero, Inc. v. City of Milwaukee, 168 N.W.2d 183, 185 (Wis. 1969)) (describing sticks in a bundle as an “ubiquitous metaphor” for a complex bundle of rights).

18 This result might seem counterintuitive given that abortion and contraception are some of the only health-related services that courts have included within the scope of those fundamental liberties given special solicitude under the Due Process Clause. See, e.g., Abigail, R. Moncrieff, The Freedom of Health, 159 U. Pa. L. Rev. 2209 (2011)Google Scholar.

Indeed it is my intention to offer an alternative account of a right to health, one under which we are mutually obligated to one another to prevent, address, and acknowledge suffering and even enable flourishing. What is protected is not just a liberty interest in deciding the disposition of one's body in narrow circumstances of medical care, which Moncrieff extrapolates from existing case law, but a broader right relating to the disposition of one's embodied state even outside the confines of choice about medical care. This broader right does not differ from Moncrieff's merely along the usual positive right/negative right dimension. Indeed it could be framed as sphere of immunity to protect human thriving from undesired or undesirable incursion, and therefore broader than the mere freedom from interference in the choice for or against treatment.

Of course my account of a negative health right based on human capacities for suffering and flourishing, rather than on neoliberal conceptions of human autonomy, is different from but does not preclude the possibility of, other rights existing alongside it. For instance, the right arguably expressed in Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), and Roe v. Wade, 410 U.S. 113 (1973), which is our right to mutual forbearance from interference with reproductive decisions, is another background right partially expressed in our existing case law in addition to the right I identify here. The right that I sketch in this piece, and plan to extend further, is a more health-related right, to which courts at present regrettably view reproductive/sexual health as marginal. My proposed reconstruction of the right would not be so narrow. But the other right immanent in our case law is a more privacy-grounded right, to which courts view reproductive/sexual choice as more central. For arguments that abortion has been, unfortunately, constructed in the strategic legal discourse as separate and apart from mainstream health care, see Maya Manian, The Consequences of Abortion Restrictions for Women's Healthcare, 71 Wash. & Lee L. Rev. 1317 (2014).

19 Others have sought, through varied and creative means, to pursue related projects with respect to education and other rights. See Goodwin, Liu, Education, Equality, and National Citizenship, 116 Yale L.J. 330 (2006)Google Scholar. See also William, E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1 (1999)Google Scholar; William, E. Forbath, Why is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 Stan. L. Rev. 1771 (1994)Google Scholar (arguing for a constitutional right to work). For his work advancing an account of the right to minimum protection against the hazards of poverty, and arguing against a pure nondiscrimination account of the case law, just as I argue here against a formal equality explanation of health-related cases, see Frank, I. Michelman, Foreword, On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 14-16 (1969)Google Scholar [hereinafter Michelman, Foreword]. See also Frank, I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973)Google Scholar.

20 See Jessie, Hill, The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 Tex. L. Rev. 277 (2007)Google Scholar; Moncrieff, supra note 18 (characterizing this right to freedom of health as liberty with respect to disposition of one's body). See also Abigail, R. Moncrieff, Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Nonfundamental Liberties, 64 Fla. L. Rev. 639 (2012)Google Scholar [hereinafter Moncrieff, Safeguarding]; Eugene, Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harv. L. Rev. 1813 (2007)Google Scholar. Although not focusing on health law, others have discussed commercial speech doctrine, as driven by neo-Lochner economic libertarianism. See, e.g., Jeremy, Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. (2016)Google Scholar; Jedediah, Purdy, Neoliberal Constitutionalism: Lochnerism for a New Economy, 77 Law & Contemp. Probs. 195 (2014)Google Scholar.

21 Moncrieff, Safeguarding, supra note 20, at 643.

22 See supra notes 19-20 for literature extending back many decades on how background rights can be protected indirectly in variously termed “hybrid,” “semi-substantive,” “constitutional common law,” or structural constitutional analysis, in statutory interpretation canons, or in the form of “clear statement” or “legislative enactment” costs. See, e.g., Matthew, C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 Yale L.J. 2, 6, 39 (2008)Google Scholar. Frank Michelman also shows how the Supreme Court, during a certain era, indirectly protected economic and social rights of the poor through these semi-substantive means. Michelman, Foreword, supra note 18.

23 The cases I examine are examples of courts striking state action out of solicitude for health values. See infra section IV.B.3 for a discussion of why a negative right striking non-health measures for their failure to sufficiently protect health might be a desirable extension. A related approach, the Health in All Policies, has been discussed widely. See, e.g., Maxim, Gakh, Law, the Health in All Policies Approach, and Cross-Sector Collaboration, 130 Pub. Health Reps. 96 (2015)Google Scholar.

24 See Christina S. Ho, Reconstructing the Right to Health as a Negative Procedural Right (Sept. 29, 2016) (unpublished manuscript) (on file with author) for an exploration of how such a right might be reconstructed through tools such as health impact assessments.

25 Eleanor, D. Kinney & Brian, A. Clark, Provisions for Health and Health Care in the Constitutions of the Countries of the World, 37 Cornell Int'l L.J. 285, 291 (2004)Google Scholar (finding that 67.5% of the world's constitutions address health or health care).

26 Eleanor, D. Kinney, Recognition of the International Human Right to Health and Health Care in the United States, 60 Rutgers L. Rev. 335, 353-55 (2008)Google Scholar.

27 G.A. Res. 2200A (XXI), International Covenant on Economic, Social and Cultural Rights, (Jan. 3, 1976) [hereinafter ICESCR]. The ICESCR now also incorporates General Comment 14, which further specifies the implementation of this duty. Comm. on Econ., Soc. & Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000). The U.S. voted along with all United Nations (U.N.) members to adopt the Universal Declaration of Human Rights,. G.A. Res. 217 (III) A, (Dec. 10, 1948) (declaring in Article 25 that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including … medical care … and the right to security in the event of … sickness [and/or] disability.”). While the Universal Declaration of Human Rights is not a treaty, it is considered the authoritative interpretation of the commitments of the U.N. Charter by which all U.N. members are bound. See Gillian, MacNaughton & Mariah, McGill, Economic and Social Rights in the United States: Implementation Without Ratification, 4 Ne. U. L.J. 365, 371-73 (2012)Google Scholar.

28 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2012) (codified in scattered sections of 42 U.S.C.).

29 See Hoffman and, supra note 9; Orentlicher, supra note 9.

30 PPACA § 1251, 42 U.S.C. § 18011 (2012).

31 Timothy, Stoltzfus Jost, Loopholes in the Affordable Care Act: Regulatory Gaps and Border Crossing Techniques and How to Address Them, 5 St. Louis U. J. Health L. & Pol'y 27 (2011)Google Scholar.

32 See, e.g., 26 U.S.C. § 5000A(d) and (e)(3) (2012).

33 Rachel Nardin et al., The Uninsured After Implementation of the Affordable Care Act: A Demographic and Geographic Analysis, Health Aff. Blog (June 6, 2013) http://healthaffairs.org/blog/2013/06/06/the-uninsured-after-implementation-of-the-affordable-care-act-a-demographic-and-geographic-analysis/ [https://perma.cc/MN53-SQJY]. However when President Obama signed the legislation, he claimed otherwise, stating, “And we have now enshrined, as soon as I sign this bill, the core principle that everybody should have some basic security when it comes to their health care.” Josh Blackman & Randy Barnett, Unprecedented: The Constitutional Challenge to Obamacare 81 (2013).

34 The term “mandatory” can be used in the budgetary sense meaning that Congress must fund these benefits regardless of appropriations. However, these benefits are not “mandatory” in the sense that states could still opt out of Medicaid altogether. Yet the ACA Medicaid expansion as originally designed was “mandatory” in a third sense, meaning that the eligibility of certain populations may be required as a condition of receiving any federal Medicaid funds. See Christina, S. Ho, Budgeting on Autopilot: Do Sequestration and the Independent Payment Advisory Board Lock-In Status Quo Majority Advantage?, 50 Tulsa L. Rev. 695, 721-24 (2015)Google Scholar.

35 See infra text accompanying notes 225-88.

36 See, e.g., H.L.A., Hart, Are There Any Natural Rights?, 64 Phil. Rev. 175, 177 (1955)Google Scholar, reprinted in Theories of Rights 77, 79 (Jeremy Waldron ed., 1984) (deriving his notion that true rights are choice rights to X or not-X, from his view that “a right belongs to that branch of morality which is specifically concerned to determine when one person's freedom may be limited by another's and so to determine what actions may appropriately be made the subject of coercive legal rules.”). But see Joel Feinberg, A Postscript to the Nature and Value of Rights, in Rights, Justice, and the Bounds of Liberty 156, 157-58 (1980) (conceding that not all rights are choice-rights because rights to X do not necessarily entail rights to not-X, citing the examples of vaccination and schooling insofar as children have a right to both, but may not be at liberty insofar as they have a duty to undertake them also). Also, Feinberg, like Dworkin, includes moral rights in his definition of rights and thus calls for “recognition” but not necessarily “justiciability.” Joel Feinberg, The Nature and Value of Rights, in Rights, Justice, and the Bounds of Liberty 143, 155 (1980) [hereinafter Nature and Value]. His is consistent with others' usage. See, e.g., Lawrence Sager, The Domain of Constitutional Justice, in Constitutionalism: Philosophical Foundations 235, 240 (Larry Alexander ed., 1998).

37 See, e.g., Joseph, William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975 (1982)Google Scholar. Wesley N. Hohfeld noted that rights colloquially spanned all of these categories beyond classic claim-rights. Wesley, Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913)Google Scholar. Hohfeld's four basic legal entitlements of rights, liberties, powers, and immunities and their correlatives can be arrayed thus:

Id. at 30.

One of Hohfeld's critics used a health-related example of A's privilege/liberty to smoke a cigar in his own study. B, A's spouse, does not necessarily have a duty to refrain from interfering. Thus A's liberty does not always come along with a right against his spouse in Hohfeld's analysis. But B does not have a claim-right to stop A either: B cannot get the state's backing to interfere with A. This situation does imply that at a minimum, the state has a duty to forbear from using its enforcement power to back B's interference with A. See Arthur, L. Corbin, Jural Relations and their Classifications, 30 Yale L.J. 226, 233-34 n.6 (1921)Google Scholar. So in that sense, A's liberty is less distinct from a right than might appear at first glance. See also Singer, supra, at 986 (reminding us that “‘immunities' are security from having one's own entitlements changed by others.”). Thus A's right to buy medical products such as contraceptives under Eisenstadt v. Baird, 405 U.S. 438 (1972) against the state's restriction to married couples only, might be an immunity (though it would appear that the scope of the right permits the government to assign to a licensed practitioner the power to determine whether you can buy a prescription contraceptive or not). On the other hand, the jural relation could also be framed as a claim-right in the sense that government has a correlative duty not to interfere in specific ways with one's choice whether to purchase contraceptives. Meanwhile, powers are abilities to change the legal entitlement of others (the power to contract, for instance) and the limited implicit right I refer to throughout may behave like a power insofar as it grants health-law opponents the power to sue to invalidate a law they oppose.

38 Dworkin, TRS, supra note 1, at 89-93 (also making clear that his background moral rights are not necessarily justiciable rights).

39 Ronald Dworkin, Rights as Trumps, in Theories of Rights 153, 165 (Jeremy Waldron ed., 1984) (“My aim is to develop a theory of rights that is relative to the other elements of a political theory ….”).

40 Dworkin, TRS, supra note 1, at 92 (“We might, for simplicity, stipulate not to call any political aim a right unless it has a certain threshold weight against collective goals in general; unless, for example, it cannot be defeated by appeal to any of the ordinary routine goals of political administration, but only by a goal of special urgency.”).

41 See Feinberg, The Nature and Value of Rights, supra note 36, at 155 (describing why “claiming,” or the ability for each person to initiate the enforcement or recognition of that right, is an important feature of rights).

42 Dworkin, TRS, supra note 1, at 91.

43 Id.

44 Id.

45 Id. at 91 n.1 (“I count legal persons as individuals, so that corporations may have rights; a political theory that counts special groups, like racial groups, as having some corporate standing within the community may therefore speak of group rights.”).

46 Id. at 90-91.

47 Id. at 91.

48 Id. at 90.

49 Id. at 91-93.

50 Duncan Kennedy, A Critique of Adjudication 120 (2000).

51 Id. at 158.

52 Dworkin, TRS, supra note 1, at 88.

53 Id. at 13.

54 See Waldron, supra 16, at 516.

55 Id. at 516-17. “[R]ights are to prevail over utility precisely because the whole point of setting them up is to correct for the defects in the utilitarian arguments which are likely to oppose them.” Id. at 516.

56 Dworkin, supra note 39, at 158 (explaining the right of political independence as expressly for preclusion of such preferences, given that it is by definition “the right that no one suffer disadvantage in the distribution of goods or opportunities on the ground that others think he should have less because of who he is or is not, or that others care less for him than they do for other people. The right of political independence would have the effect of insulating Jews from the preferences of Nazis ….”).

57 Waldron, supra note 16, at 517.

58 Id. at 518-19 (adding “this approach will not deal with all moral conflicts and there is no reason to want it to …. What we were looking for was something to capture our sense that [utilitarian balancing] is not always the whole story—our sense that sometimes, or in some conflicts, the issue is one of qualitative precedence rather than quantitative weight. I think the idea of internal connections helps to capture some of that …. We can establish qualitative priorities in some places, without thinking we have to establish qualitative priorities everywhere.”).

59 Id. at 519.

60 See infra text accompanying notes 225-88.

61 Norman Daniels & James E. Sabin, Setting Limits Fairly: Can We Learn to Share Medical Resources? 14-16 (2002) (stating the health norms thus: “In nearly all societies people believe that access to health care should be based on need, not on ability to pay …. [W]e capture the widely held belief … that we owe assistance to each other to correct for the contingencies of disease and disability.”).

62 See infra notes 300 and 306.

63 See Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001).

64 See, e.g., Frank, Cross, The Error of Positive Rights, 48 UCLA L. Rev. 857 (2001)Google Scholar. But see, Susan, Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271 (1990)Google Scholar.

65 Moncrieff, supra note 18, at 2212-13, 2228-30; Benjamin Mason Meier & Dhrubajyoti Bhattacharya, Health Care as a Human Right, in Debates on U.S. Health Care 32, 42 (Jennie Jacobs Kronenfeld et al, eds., 2012).

66 See, e.g., Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1999) (discussing why both positive and negative rights require expenditure of resources by the State); Bandes, supra note 64.

67 Kenneth, J. Arrow, Some Ordinalist-Utilitarian Notes on Rawls's Theory of Justice, 70 J. Phil. 245, 251-54 (1973)Google Scholar. See also, Mark A. Hall, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms 3-6 (1997).

68 Richard A. Epstein, Mortal Peril: Our Inalienable Right to Health Care? 2 (1997) (declaring, “No one believes that the right to health care is so absolute that it sweeps aside all claims to food, clothing, or shelter. Yet by the same token, the scope of a more circumscribed duty turns out, at a philosophical level, to be well-nigh indefinable, no matter how many times we intone the words ‘reasonable,’ ‘decent,’ ‘basic,’ ‘adequate,’ or ‘necessary.’”). He believes that health, or at least health care, could absorb every dollar because we have different preferences regarding health care, and cannot readily distinguish between useful and futile care. Id. at 59-79.

69 In a future project, I will describe how to incorporate strong negative rights in the reconstruction of a right to health. For instance, when some other policy (such as international trade promotion or intellectual property policies) ought to cede to health, health should be, but is not easily wielded as a negative right striking, stalling or trimming back those conflicting policies. See Benn, McGrady & Christina, S. Ho, Identifying Gaps in International Food Safety Regulation, 66 Food & Drug L.J. 183, 190 (2011)Google Scholar (arguing that there is an international law asymmetry between health and trade values requiring the least-trade-restrictive health measures, but not the least-health-restrictive trade measures.). See also Wendy E. Parmet, Populations, Public Health, and the Law 251-52 (2009) (“[I]nternational trade laws, like domestic laws affecting commerce, can have a profound and disparate impact on the health of populations. Moreover, as is true in the domestic arena, imperatives for free trade can conflict with and undermine efforts by states to protect the health of their populations.”). Parmet also goes on to observe that “the strong protections for intellectual property …. ha[ve] limited the availability in the developing world of lifesaving pharmaceuticals ….” Id. at 253; Lisa, Forman & Gillian, MacNaughton, Moving Theory into Practice: Human Rights Impact Assessment of Intellectual Property Rights in Trade Agreements, 7 J. Hum. Rts. Prac. 109 (2015)Google Scholar.

70 Health impact assessment laws provide a procedural right to analysis of health effects, and this right can be used to block or stall non-health policies that injure health. See Health Impact Projects, Legal Review Concerning the Use of Health Impact Assessments in Non-Health Sectors at 1-2 (2012), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/phg/content_level_pages/reports/asufullwebsitep15webpdf.pdf [https://perma.cc/3S2Q-M23N].

71 Ellen, Nolte & C., Martin McKee, Measuring the Health of Nations: Updating an Earlier Analysis, 27 Health Aff. 58 (2008)Google Scholar.

72 Norman Daniels, Justice and Health Care, in Health Care Ethics: An Introduction 290, 302 (Donald Van DeVeer & Tom Regan eds., 1987).

73 WHO, Constitution of the World Health Organization at 1 (Oct. 2006).

74 Jennifer, Prah Ruger, Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements, 18 Yale J.L. & Human. 273, 314 (2006)Google Scholar.

75 Parmet, supra note 69, at 1-2. For the notion of law's deep values, see Robin L. West, Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights, and the Rule of Law 154 (2003). See also Lon L. Fuller, The Morality of Law (1964).

76 See Lawrence E. Hinkle, Jr. et al., 161 Sci. 238 (1968) (proposing that health is related to the organisms' ability to solve problems imposed by the environment).

77 See infra notes 81-82.

78 I personally favor definitions of health in terms of human flourishing over those grounded in a Rawlsian liberalism such as Dworkin's and Daniels'.

79 See Norman Daniels, Just Health: Meeting Needs Fairly 28 (2008).

80 Id. at 145.

81 Id. (emphasis in original). I am not necessarily endorsing this designation, merely noticing that it can usefully describe the courts' implicit conception.

82 This conception approximates what Dworkin calls the “rescue” principle of health. In his view, this “rescue” principle is “grounded in a shared human understanding of the horror of pain, and, beyond that, of the indispensability of life and health to everything else we do.” Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality 309 (2000). Dworkin himself rejects this as an appropriate principle for health care because it leads to limitless spending. He proposes instead the “prudent insurance” principle. However, his favored principle skews against rare and thereby unpredictable conditions. Moreover, it does not fully capture the network of mutuality, care, and relational practice involved in health.

83 Dworkin is a resource egalitarian of the brute luck perspective, and classifies disease as a circumstance rather than a choice, in other words as a misfortune apart from one's control and an inequality in “natural assets that limit[s] opportunities [and] require[s] remedy under justice.” Jennifer Prah Ruger, Health and Social Justice 136 (2009).

84 For the argument that reproduction, like mortality, concerns the predicate of one's existence and personhood, see Ronald, Dworkin, The Great Abortion Case, 36 N.Y. Rev. Books 49, 51 (1989)Google Scholar, characterizing questions affecting reproduction and sexuality as “so important, so intimate and personal, so crucial to the development of personality and sense of moral responsibility ….”

85 Norman Daniels, Just Health Care 6 (1985) (“Someone who claims a right to health, therefore, should be understood to be claiming that certain individuals or groups (or society as a whole) are obliged to perform certain actions which promote or maintain his good health and are obliged to refrain from actions which interfere with it.”). He goes on to disaggregate a right to health into composite rights and claims: “(1) society has the duty to its members to allocate an adequate share of its total resources to health-related needs …; (2) society has the duty to provide a just allocation of different types of health services, taking into account the competing claims of different types of health needs; (3) each person is entitled to a fair share of such services ….” Id. at 8. In this article, I mainly address 2 and 3.

86 See, e.g., United States v. Ben-Hur, 20 F.3d 313, 318 (1994) (citing Mitchell Aero, Inc. v. City of Milwaukee, 168 N.W.2d 183, 185 (Wis. 1969)) (describing sticks in a bundle as an “ubiquitous metaphor” for a complex bundle of rights).

87 See, e.g., Parmet supra note 69 (explaining the reasons various organizations use a definition of health to suit their particular needs); Prah Ruger, supra note 83 (embracing health as a component of human flourishing, which makes identical treatment inappropriate).

88 James, F. Childress, Priorities in the Allocation of Health Care Resources, 62 Soundings 256, 270 (1979)Google Scholar (“The physician is not a policymaker. His or her primary responsibility is to the patient, and society has good reasons for insisting on the primacy of this responsibility of personal care.”).

89 Dworkin, TRS, supra note 1, at 227. Later, Dworkin also recognizes that health care is ever-contingent, and thus the contours of what health care to cover, “must be provisional, open to revision on the basis of further evidence of public preference as well as of medical technology and experience.” Dworkin, supra note 82, at 318.

90 Jerome Groopman, How Doctors Think 259 (2007) (describing oncologists who “try to understand a patient's character and factor this understanding into their clinical judgements”). See also Troyen Brennan, Just Doctoring: Medical Ethics in the Liberal State 12 (1991) (“How would the state go about distributing health care equally? If it is distributed on the basis of need, we must recognize that choice will play a role in some people's needs.”).

91 Prah Ruger, supra note 74, at 279 (nevertheless outlining a non-subjective way to evaluate health and the adequacy of social efforts to promote it). See also Nicole B. Valentine et al., WHO, Health System Responsiveness: Concepts, Domains and Operationalization, in Health Systems Performance Assessment: Debates, Methods and Empiricism 573-75 (Christopher J.L. Murray & David B. Evans eds., 2003), http://apps.who.int/iris/handle/10665/42735 [https://perma.cc/Y4U9-SFSM] (identifying that a primary dimension of what a health system is supposed to generate is not just technically constituted hard outputs, but also “responsiveness” to the norms and preferences of those served by the health system).

92 Hall, supra note 67, at 39.

93 Philip, Alcabes & Ann, B. Williams, Human Rights and the Ethic of Care: A Framework for Health Research and Practice, 2 Yale J. Health Pol'y L. & Ethics 229, 248 (2002)Google Scholar.

94 See, e.g., Cynthia, M. Boyd et al., Clinical Practice Guidelines and Quality of Care for Older Patients with Multiple Comorbid Diseases: Implications for Pay for Performance, 294 JAMA 716 (2005)Google Scholar.

95 Parmet, supra note 69, at 7.

96 For instance, Medicare excludes cosmetic surgery from its health policy coverage unless the surgery is to repair an “accidental injury or for improvement of the functioning of a malformed body member.” 42 U.S.C. § 1395y(a)(10) (2012).

97 Daniels, supra note 79, at 41. Medicaid does not necessarily draw the same distinction. See infra text accompanying notes 291-307.

98 Christopher Boorse, On the Distinction Between Disease and Illness, in Medicine and Moral Philosophy 3, 10 (Marshall Cohen et al. eds., 1981).

99 Dworkin, supra note 82, at 307-10.

100 Id. Prah Ruger classifies Dworkin as a resource egalitarian, distinguishing brute luck from option luck, and classifying diseases as instances of the former. Ill-health is, for Dworkin, a misfortune apart from one's control to be treated as an inequality in “natural assets that limit opportunities [and] require remedy under justice.” Prah Ruger, supra note 83, at 136.

101 Daniels, supra note 79, at 43, 58.

102 Id. at 58.

103 See, e.g., Daniels & Sabin, supra note 61, at 1-2 (“The major force driving up health care costs … is the emergence of new technologies …. Aging populations and increased expectations about what medicine can and should do for us mean there is ever increasing demand for what technology makes possible ….”).

104 See supra note 71 and accompanying text.

105 Paul Starr, The Social Transformation of American Medicine 3-144 (1982).

106 Comm. For Evaluating Med. Techs. in Clinical Use, Inst. of Med., Assessing Medical Technologies 16-30 (1985).

107 Daniel Callahan, Taming the Beloved Beast: How Medical Technology Costs are Destroying Our Health Care System 120-42 (2009).

108 See, e.g., Diana B. Dutton, Worse than the Disease: The Pitfalls of Medical Progress 363 (1988) (describing this dynamic as occurring “[b]y default as much as by design, [through] federal cutbacks and private cost-control efforts” and pointing to evidence of this dynamic in the early 1980s).

109 Alain C. Enthoven, Theory and Practice of Managed Competition in Health Care Finance 2 (1988).

110 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

111 Nat'l Fed'n. of Ind. Bus. v. Sebelius, 132 S. Ct. 2566 (2012); Florida v. U.S. Dep't. of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (overruled in part by NFIB).

112 See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490 (1989); Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977).

113 See, e.g., Smith v. Rasmussen 249 F.3d 755 (8th Cir. 2001).

114 See Dworkin, TRS, supra note 1, at 150-205, 266-90.

115 See Ho, supra note 7.

116 See Frederick Schauer, Exceptions, 58 U. Chi. L. Rev. 871, 872–73 (1991). But see Luis Duarte D'Almeida, Allowing for Exceptions: A Theory of Defences and Defeasibility in Law (2015) (distinguishing among these different limiting parameters).

117 See infra note 245.

118 John, Fee, Greater-or-Nothing Constitutional Rules, 64 Case W. Res. L. Rev. 101 (2013)Google Scholar.

119 See Michael, Herz, Justice Byron White and the Argument that the Greater Includes the Lesser, 1994 BYU L. Rev. 227 (1994)Google Scholar.

120 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene, 970 N.Y.S.2d 200, 205 (App. Div. 2013) (capping the offering size of sugary drinks at sixteen ounces for specified establishments).

121 Tummino v. Torti, 603 F.Supp.2d 519, 523-24 (E.D.N.Y. 2009).

122 White v. Beal, 555 F.2d 1146, 1148 (3d Cir. 1977).

123 See, e.g., H.L.A. Hart, The Concept of Law (2nd ed. 1994).

124 Cass R. Sunstein, Legal Reasoning and Political Conflict 35 (1996); Cass, R. Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733 (1995)Google Scholar. For the relevance of incompletely theorized agreements for health law, see Prah Ruger, supra note 82.

125 Cass, R. Sunstein, Cost-Benefit Default Principles, 99 Mich. L. Rev. 1651, 1668 (2001)Google Scholar.

126 Ho, supra note 7, at 119-71.

127 Id. at 165-68.

128 Id. at 132.

129 Dworkin himself extended the requirement of principled integrity to legislation: “The legislature should be guided by the legislative principle of integrity, and that explains why it must not enact checkerboard statutes,” though he recognizes that “the legislature, faced with a hard choice, might well be justified in enacting the automobile defect compensation statute alone, leaving other products to another day or other days. Integrity condemns the result, but justice recommends it over no change at all, and on balance half the loaf might be better than none.” Ronald Dworkin, Law's Empire 217-18 (1986).

130 For the exceptional degree of social conflict raised by tobacco, see Micah, L. Berman, Smoking Out the Impact of Tobacco-Related Decisions on Public Health Law, 75 Brook. L. Rev. 1, 11-13 (2009)Google Scholar.

131 See John E. McDonough, Inside National Health Reform 5-10 (2011) (describing the ACA as a landmark law on par with Great Society reforms, but also a landmark civil rights law). But the phenomenon is not restricted to just these controversies. The Clean Air Act's § 109(b) language concerning the public health justification for air quality standards was the absolutist tool that the trucking industry used to challenge the EPA's 0.08 parts per million ozone standards as impermissibly under-inclusive because they arbitrarily exempted lower ozone levels that still cause health effects. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 465 (2001) (noting that “[s]ection 109(b)(1) instructs the EPA to set primary ambient air quality standards ‘the attainment and maintenance of which… are requisite to protect the public health’ with ‘an adequate margin of safety.’ 42 U.S.C. § 7409(b)(1)”).

See also Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2439 (2014) (striking EPA's interpretation of “any air pollutant” which exempted from prevention of significant deterioration and Title V permitting requirements those sources emitting less than 75,000 - 100,000 tons per year of greenhouse gases). These carve-outs were condemned as under-inclusive in light of statutory thresholds designating “major” sources as polluters emitting 100 or 250 tons of pollutant per year. Id. at 2449. This judicial substitution for the agency's statutory interpretation threatened EPA's ability to regulate greenhouse gases (GHGs) as pollutants insofar as they would have to now oversee many small individual polluters. However, the practical consequences of this interpretation were mitigated somewhat by Justice Scalia's interpretation of “any source” to permit the inclusion of GHGs as pollutants subject to “best available control technology” (BACT) by “anyway polluters,” or those sources who were already obliged under the Clean Air Act to engage in BACT for other pollutants. Id.

One could argue that the presence of this all-or-nothing hostility to carve-outs in the environmental law arena belies the claim that the maneuver I have identified reveals an implicit health right. There are two types of response to that claim. First, the presence of an implicit non-constitutional environmental right (which I do not set out to prove here, but which others claim was the express purpose of the environmental public interest lawyering movement) does not disprove an implicit right to health. It may simply mean that there are other implicit rights lurking in the law as well. See, e.g., A., Dan Tarlock, The Future of Environmental “Rule of Law” Litigation, 17 Pace Envtl. L. Rev. 237, 241 (2000)Google Scholar (recounting how the environmental movement was able to get judges to find an environmental canon in the body of the law). The second response is that environmental values are in fact values about human flourishing, and thus it is very hard to disentangle environmental concerns and concerns about human population health and well-being. Even with respect to climate change, which might be the limiting example of a concern for the environment qua environment, examples abound for framing climate change in terms of human health effects. See, e.g., Comm. on the Effect of Climate Change on Indoor Air Quality & Pub. Health, Inst. of Med., Climate Change, the Indoor Environment, and Health; Sarah, Whitmee et al., Safeguarding Human Health in the Anthropocene Epoch: Report of the Rockefeller Foundation-Lancet Commission on Planetary Health, 386 Lancet 1973 (2015)Google Scholar (identifying climate change with human health hazards from vulnerability to extreme conditions, emerging infectious disease, vector-borne epidemics, disasters, conflict, displacement, threats to food and even micro-nutrient adequacy).

132 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

133 Food, Drug, and Cosmetic Act §§201(g) and (h); 21 U.S.C. §321(g) and (h) (emphasis added).

134 FDCA §201(h); 21 U.S.C. § 321(h)(3) (providing that a device must also satisfy the parameter that it “does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes”).

135 Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 44,396, 44,398-399 (Aug. 28, 1996) (codified in scattered parts of 21 C.F.R.).

136 See Berman, supra note 130, at 8-11. See also Richard, A. Daynard, Tobacco Liability Litigation as a Cancer Control Strategy, 80 J. Nat'l. Cancer Inst. 9, 9-10 (1988)Google Scholar; Richard, A. Daynard, Tobacco Products Liability Litigation as an Antismoking Strategy, in Smoking and Health 1987: Proceedings of the 6th World Conference on Smoking and Health 409, 410-11 (Masakazu, Aoki et al. eds., 1987)Google Scholar.

137 See, e.g., John Schwartz, Tobacco Settles Minnesota Suit, Wash. Post (May 9, 1998), http://www.washingtonpost.com/wp-srv/national/longterm/tobacco/stories/minnesota2.htm [https://perma.cc/UJ9E-9DT6] (reporting on the over $6.5 billion settlement between five tobacco companies and Minnesota).

138 61 Fed. Reg. at 44,632. The tobacco manufacturers used methods such as introducing bronchodilators, ammonia, and physical design features in cigarettes to speed the absorption of nicotine and provide doses optimized for neurophysical response and addiction. Campaign for Tobacco-Free Kids, Designed for Addiction: How the Tobacco Industry Has Made Cigarettes More Addictive, More Attractive to Kids and Even More Deadly 9-10, 26, 28-36 (June 23, 2014), https://www.tobaccofreekids.org/content/what_we_do/industry_watch/product_manipulation/2014_06_19_DesignedforAddiction_web.pdf [https://perma.cc/NF86-8RCH].

139 61 Fed. Reg. at 44,397.

140 Id. at 44,421.

141 Id. at 44,398.

142 Brown & Williamson, 529 U.S. at 135-36.

143 Id. at 134-35.

144 Id. at 136 (the classification of the devices determines how much regulation by the FDA is required to ensure safety and efficacy).

145 Federal Food, Drug, and Cosmetic Act §§ 513(a)(1), 513(a)(3); 21 U.S.C. §§ 360c(a)(1), 513(a)(3) (2012).

146 Brown & Williamson, 529 U.S. at 136. But see id. at 174 (Breyer, J., dissenting) (noting that “in the majority's view, the FDCA requires the FDA to ban outright ‘dangerous' drugs or devices (such as cigarettes)”).

147 Id. at 159-60. See also Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837 (1984) (holding that if Congress has not spoken directly to the issue in question, the administrative agency is given deference if its interpretation of the statute is a permissible construction).

148 Cass, R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 247 (2006)Google Scholar. This doctrine is now cemented in another health case. King v. Burwell, 135 S. Ct. 2480 (2015).

149 Brown & Williamson, 529 U.S. at 133.

150 Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 44,396, 44,113 (Aug. 28, 1996) (codified in scattered parts of 21 C.F.R.).

151 Id. at 44,398-399, 44,404-406.

152 Tummino v. Torti, 603 F.Supp.2d 519, 524 (E.D.N.Y. 2009).

153 See, e.g., Public Health Service Act §§ 2701-2706, 42 U.S.C. §§ 300gg-300gg-5 (ACA prohibiting such discrimination in insurance markets). From the standpoint of popular constitutionalism, one might conclude that legislatures and the public are specifying a conception of health rights, or “suspect” categories that should not be used to disqualify someone from health protection. See David, A. Super, The Modernization of American Public Law: Health Care Reform and Popular Constitutionalism, 66 Stan. L. Rev. 873 (2014)Google Scholar (interpreting the ACA as a key moment in popular constitutionalism).

154 Uwe E. Reinhardt, Does the Aging of the Population Really Drive the Demand for Health Care? 22 Health Aff. 27, 27 (2003).

155 See, e.g., Tummino, 603 F.Supp.2d at 524 (challenging the FDA's prohibition on access to Plan B by those under the age of eighteen).

156 61 Fed. Reg. at 44,531-532.

157 Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 337(a) (2012) (restricting FDCA enforcement to suits by the United States). See, e.g., In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781 (3d Cir. 1999) (allegations of conspiracy to violate the FDCA do not state a cause of action).

158 APA §706(2)(A), (C) and (E). APA §702 (“a person suffering legal wrong, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review therof.”)

159 Their injury would consist of health effects from the failure to be protected from a product for which reasonable assurance of safety cannot be demonstrated. The FDCA presumably protects the health interests that would be asserted by the beneficiaries. See, e.g., Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970) (articulating that the complainant must be “aggrieved … within the meaning of a relevant statute.” This requires that “the interest sought to be protected by the complainant is “arguably within the zone of interests to be protected or regulated by the statute … in question.”). The chances of winning on a challenge of the FDA's failure to withdraw from market or for FDA's wrongful approval are slim.

160 See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000) (acknowledging the negative health effects of smoking tobacco but holding that the FDA exceeded its statutory authority by regulating tobacco products).

161 See Kenneth W. Simons, Overinclusion and Underinclusion: A New Model, 36 UCLA L. Rev. 447, 484 n.125 (1989) (observing that “[t]he First Amendment overbreadth doctrine includes an unusual standing component: the complainant may sometimes object to overbreadth even if she is ‘guilty’ and unprotected by the first amendment”).

162 Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1338, 1340-1341 (2012) (containing the § 1334 preemption provision cited by Justice O'Connor in Brown & Williamson, 529 U.S. at 150).

163 Agricultural Adjustment Act of 1938, 7 U.S.C. § 1311(a) (2003) (repealed 2004).

164 Westen, supra note 8 (declaring that rights falsely purport to contain substance whereas the formal characteristics of rights are most salient). See also Horwitz, supra note 7 at 399 (explaining, “One of the most important tendencies of liberal rights theories is that they achieve universality … by sacrificing substantive content. The most famous example of the kind of abstract formality that typically characterizes liberal rights theory is Kant's contentless categorical imperative.”) (footnotes omitted).

165 Brown & Williamson, 529 U.S. at 127-28.

166 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

167 Richard, A. Daynard et al., Implications for Tobacco Control of the Multistate Tobacco Settlement, 91 Am. J. Pub. Health 1967 (2001)Google Scholar.

168 Master Settlement Agreement at 1-2, 44-45 (Nov. 23, 1998), http://publichealthlawcenter.org/sites/default/files/resources/master-settlement-agreement.pdf [https://perma.cc/DKT8-57ET].

169 Lorillard, 533 U.S. at 533 (Harshbarger discussed the need to “close holes” in the MSA).

170 Id.

171 Id. at 532.

172 940 Mass. Code Regs. § 21.04(5)(a), (b) (2004).

173 Lorillard, 533 U.S. 525.

174 Id. at 553. (“By its terms, the FCLAA's pre-emption provision only applies to cigarettes.”).

175 Id. at 566 (explaining that “the State's goal is to prevent minors from using tobacco products and to curb demand for that activity by limiting youth exposure to advertising. The 5-foot rule does not seem to advance that goal.”). See also id. at 582-83 (“Anyway, by the time they are 12 1/2 years old, both the median girl and the median boy are over five feet tall. Thus, there is no reason to believe that this regulation does anything to protect minors from exposure to tobacco advertising.”) (internal citation omitted).

176 Id. at 554 (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980)).

177 Id. at 566 (quoting Central Hudson, 447 U.S. at 564).

178 Id. at 556.

179 “The Court of Appeals recognized that the efficacy of the regulation was questionable, but decided that, ‘in any event, the burden on speech imposed by the provision is very limited.’ There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification. We conclude that the restriction on the height of indoor advertising is invalid under Central Hudson's third and fourth prongs.” Id. at 567 (emphasis added) (internal citations omitted).

180 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 565-66 (2001).

181 Id.

182 Lorillard, 533 U.S. at 565-66.

183 Id. at 566.

184 See, e.g., Kevin, Outterson, Higher First Amendment Hurdles for Public Health Regulation, 365 New Eng. J. Med. e13(1), e13(2) (2011)Google Scholar. See also Micah Berman et al., Sorrell and the Future of Commercial Speech Regulations, Jurist (Oct. 4, 2011), http://www.jurist.org/forum/2011/10/berman-dachille-aoki-sorrell.php [https://perma.cc/P3SF-E2JQ] (while the use of such heightened scrutiny is “troubling,” legislatures should not be deterred from introducing public health legislation); Samantha Rauer, When the First Amendment and Public Health Collide: The Court's Increasingly Strict Constitutional Scrutiny of Health Regulations That Restrict Commercial Speech, 38 Am. J.L. & Med. 690, 702-05 (2012).

185 Rauer, supra note 184, at 705 (describing how, using reasoning “[s]imilar to the logic applied in [a strict scrutiny case], the Court has struck down public health commercial speech regulations for being both over- and under-inclusive, although these regulations are supposed to be subject to a lesser standard. For example, the ban in Rubin [v. Coors Brewing Co., 514 U.S. 476 (1995)] was found to be under-inclusive because it applied only to labels and not to advertising.”). See Sorrell v. IMS Health Inc., 545 U.S. 552 (2011) (applying strict scrutiny to strike a health measure burdening commercial speech citing the content-based or speaker-based nature of the health provision).

186 Lorillard, 533 U.S. at 564.

187 See supra note 83.

188 See supra text accompanying notes 177-79.

189 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012); Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011).

190 26 U.S.C. § 5000A(a)(2) (2012) (setting the 2016 payment as the greater of 2.5% of income above the filing limit or $695, capped at the average cost of a basic insurance plan).

191 26 U.S.C. §§ 5000A(d) - 5000A(e) (2012).

192 26 U.S.C. §§ 5000A(d) - 5000A(e)(1)(A) (2012).

193 Liberty Univ., Inc. v. Geithner, 671 F.3d 391 (4th Cir. 2011) (dismissed for lack of jurisdiction under the Anti-Injunction Act until plaintiff seeks refund.); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) (dismissed for lack of standing).

194 Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011) (affirming the constitutionality of the individual mandate).

195 Seven-sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) (upholding the individual mandate).

196 Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011).

197 Id. at 1328 (holding that the individual mandate was a penalty, not a tax, and the individual mandate “exceeds Congress's enumerated commerce power”).

198 Id. at 1306-07.

199 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2592 (2012).

200 Id. at 2601.

201 See Brief for Petitioner at 33, Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (No. 11-398) (with the government stating that “[t]he minimum coverage provision is within Congress's power to enact not only because it is a necessary component of a broader scheme of interstate economic regulation, but also because, within that scheme, [the provision itself] regulates economic conduct with a substantial effect on interstate commerce …”).

202 ACA § 1501(a)(2)(G), 42 U.S.C. § 18091(2)(I) (2012).

203 42 U.S.C. §§ 1395dd – 1395hh (imposing limited free emergency care obligations).

204 PPACA, 42 U.S.C. § 18091(2)(F).

205 Petition for Writ of Certiorari at 5-7, U.S. Dep't of Health & Hum. Servs. v. Florida, 648 F.3d 1235 (2011) (No. 11-398), petition granted sub nom. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

206 See, e.g., United States v. Morrison, 529 U.S. 598, 613 (2000) (“Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”).

207 See Gonzales v. Raich, 545 U.S. 1, 37 (2005) (Scalia, J., concurring) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”).

208 See supra note 205, at 7.

209 Florida v. U.S. Health & Human Servs., 648 F.3d 1235, 1279 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)).

210 Id. at 1296-98.

211 Id. at 1299 (“To the extent the data show anything, the data demonstrate that the cost-shifters are largely persons who either (1) are exempted from the mandate, (2) are excepted from the mandate penalty, or (3) are now covered by the Act's Medicaid expansion.”).

212 Tom, Baker & Peter, Siegelman, Tontines for the Invincibles: Enticing Low Risks into the Health-Insurance Pool with an Idea from Insurance History and Behavioral Economics, 2010 Wis. L. Rev. 79 (2010)Google Scholar.

213 648 F.3d 1235, 1299.

214 648 F.3d at 1293.

215 Id. at 1326 (concluding, “[T]he operation of the individual mandate is limited by its three exemptions … leaving virtually no enforcement mechanism.”).

216 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2585 (2012).

217 Id. at 2573 (emphasis added). For more on this case and the treatment of the two different justifications for the mandate, see Christina, S. Ho, In Defense of Circular Reasoning: The Affordable Care Act and the Resilience of Law and Self-reference, 5 Wm. & Mary Pol'y Rev. 1 (2013)Google Scholar.

218 648 F.3d at 1310.

219 However, this may matter less for some accounts of rights than others. See Jeremy, Waldron, Dignity, Rights, and Responsibilities, 43 Ariz. St. L.J. 1107 (2012)Google Scholar (whose argument might be applied here to say that the excluded group's rights depend on their conformance to the mandate, so the exempted individuals are the ones whose rights are violated).

220 This situation arguably satisfies Dworkin's test for whether a right to protection, or enforcement by the government, constitutes a right. Dworkin, TRS, supra note 1, at 194.

221 Horwitz, supra note 8, at 403 (illustrating how the distinction between public coercion and private freedom is malleable in this way:

[S]tate intervention can always be characterized either as an interference with the associational rights of the group or as a vindication of the rights of the individual members. In family law, for example, we can speak of the state as intervening in the associational rights of the family or as vindicating the rights of the abused or deprived child or spouse.

222 H.L.A. Hart acknowledges that mutuality of restriction can give rise to special rights to the restriction of others. See Hart, supra note 36, at 85 (“[W]hen a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission.”).

223 See infra text accompanying note 369.

224 See, e.g., Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1309 (11th Cir. 2011).

225 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2590 (2012).

226 Id. at 2600 (upholding the mandate on the premise of Congress's power to tax).

227 Id. at 2608.

228 Social Security Act § 1902(a)(10)(A)(i), 42 U.S.C. § 1396a(a)(10)(A)(i) (2012).

229 Id.

230 PPACA § 2001(a)(1), 42 U.S.C. § 1396a (setting the threshold at 133% of poverty, but with an income disregard).

231 The fact that an unconstitutional condition is structurally analogous to striking-for-underinclusion (which can also be described as those cases that belie the Holmesian expectation that the greater-includes-the-lesser) has been noticed by many. See, e.g., Mitchell N. Berman, Commercial Speech and the Unconstitutional Conditions Doctrine: A Second Look at the “Greater Includes the Lesser,” 55 Vand. L. Rev. 693 (2002); Fee, supra note 118; Herz, supra note 118; Westen, supra note 7.

232 See PPACA, 42 U.S.C. § 1396a.

233 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2629 (Ginsburg, J., concurring in part and dissenting in part) (posing the hypothetical where Congress fully repeals Medicaid I, and re-enacts Medicaid II with the new mandatory category of adults up to 133% added to a program that is otherwise identical to Medicaid I). See Mitchell N. Berman, Conditional Spending and the (General) Conditional Offer Puzzle 16 (The Univ. of Tex. Sch. Of Law, Public Law and Legal Theory Research Paper Series No. 522, 2013), http://ssrn.com/abstract=2292755 [https://perma.cc/WFU7-ZHMA] (“[Roberts] strongly intimated agreement with Justice Ginsburg … that conditioning eligibility for funds earmarked for some beneficiaries on a state's agreement to insure others would have been permissible had the several classes of beneficiaries, and the linkages among them, been established at the inception ….”).

234 Einer, Elhauge, Contrived Threats Versus Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail, 83 U. Chi. L. Rev. 503, 505 (2016)Google Scholar.

235 He goes on to reject each of these explanations, and proposes that the decision might best be salvaged as a holding that all three factors must be present. Samuel R. Bagenstos, The Anti-Leveraging Principle and the Spending Clause after NFIB, 101 Geo. L.J. 861, 865-66, 920-21 (2013).

236 Core minimum health obligations need not refer to solely core benefits as the core content of a right to health. Here I refer to a core level of financing for a core population. See, e.g., Lisa Forman, What Future for the Minimum Core: Contextualizing the Implications of South African Socioeconomic Rights Jurisprudence for the International Human Right to Health, in Global Health and Human Rights: Legal and Philosophical Perspectives (John Harrington & Maria Stuttaford eds., 2010) (describing that the core content of a right to health could constitute basic health needs for the poor).

237 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2603 (2012).

238 See, e.g., Bagenstos, supra note 235, at 875 (criticizing this “too-big-to refuse” approach).

239 Richard S. Foster, Office of the Actuary, CMS, Estimated Financial Effects of the “Patient Protection and Affordable Care Act,” as Amended Table 5 (April 22, 2010) (prior law baseline, or “old” federal Medicaid/Children's Health Insurance Program (CHIP) spending in 2016 was projected to be $395 billion, but federal Medicaid CHIP spending in 2016, including “new” Medicaid, was projected to be $82 billion higher).

240 See NFIB, 132 S. Ct. at 2606.

241 Bagenstos, supra note 235, at 883-84 (citing the democratic reasons that state cannot be entitled to disable Congress' future policy choices).

242 NFIB, 132 S. Ct. at 2630, 2638-39 (Ginsburg, J., concurring in part and dissenting in part) (citing 42 U.S.C. § 1304).

243 Bagenstos' third factor in his three-prong Anti-Leveraging Principle. Bagenstos, supra note 235, at 892.

244 NFIB, 132 S. Ct. at 2603 (emphasis added).

245 See, e.g., Mitchell, N. Berman, Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions, 91 Tex. L. Rev. 1283, 1286-88 (2013)Google Scholar (explaining the basic framework of why the decision is an unconstitutional conditions holding). For other commentators who view Roberts' NFIB Medicaid holding as a species of unconstitutional conditions holding, see Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform 123 (2013) (claiming that there is logical sense to seeing this as an unconstitutional conditions holding). See also Adam, B. Cox & Adam, M. Samaha, Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory, 5 J. Legal Analysis 61, 67-68 (2012)Google Scholar (mentioning briefly how the Roberts opinion can be seen as an unconstitutional conditions holding); Elhauge, supra note 242, at 544-48.

246 Berman, id. at 1288; Berman, supra note 231, at 730-35, 773.

247 See Elhauge, supra note 234, at 506, 548, 585.

248 See, e.g., Berman, supra note 231, at 787.

249 Elhauge, supra note 234, at 524-25, 532-37. Both accounts also challenge existing Spending Clause jurisprudence. See infra text accompanying notes 254 and 258-261 (discussing how Berman must abandon South Dakota v. Dole, 483 U.S. 203 (1987)). Elhauge only manages to salvage Dole insofar as Dole implicates a smaller amount of funding compared to NFIB, and thus approaches a borderline call as to whether other welfare benefits in the transaction might justify the loss to the threat recipients. Elhauge, supra, at 550, 553-55. The size of Medicaid funding denied to the states, by contrast, digs a deeper welfarist hole that the threatener then cannot meet or justify, given that her own welfare also provides no independent reason for the threatened action. Thus Elhauge, relying on the uncertainty and speculation involved in setting a counterfactual welfarist baseline, seems to suggest that as a matter of judicial manageability, we should not strike the Dole bargain hinging some small portion of highway funds on a minimum drinking age law, even if that offer amounts to a contrived threat. Elhague, supra, at 526 (“Administrative grounds explain why the law requires a significant difference even though a small difference could result in some small harm.”). My analysis, resting on a right to “core” health financing, avoids these difficulties.

250 Roberts says that without limits on the spending power, “libery would suffer.” Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602. But he niether “specifies how liberty is endangered by the asserted power. Evidently there is a suppressed premise.” Koppelman, supra note 245, at 132.

251 Berman, supra note 245, at 1334.

252 And under Current Spending Clause jurisprudence, Congress often exercises its ability to create new mandatory eligibility categories or add new funding conditions. See Nicole, Huberfeld et al., Plunging into Endless Difficulties, 98 B.U. L. Rev. 1, 21 (2013)Google Scholar (identifying mandatory amendments in 1967, 1972, 1988, and 2003, particularly the 1972 expansion of eligibility for the “aged, blind, and disabled,” raising previous state income eligibility thresholds up to the income eligibility level which qualified a recipient for federal supplemental security income, though the statute detailed an alternate route for states to comply with this expansion).

The ACA modified other conditions of participation as well, adding Maintenance of Effort (MOE) requirements to state Medicaid programs as well. MOE refers to a type of requirement imposed from time to time on matching funds programs where the states risk their federal funds if they roll-back eligibility, benefits, or the generosity of the state program compared to the historical level at a designated point in time. See Blackman & Barnett, supra note 33, at 203 (mentioning that HHS contacted Arizona in 2010 threatening loss of Medicaid funding for the state's CHIP cutbacks).

253 Huberfeld et al., supra note 252, at 6.

254 Berman himself contends that the additional element of wrongful purpose must be present, namely, that the reason for the threat of withholding benefits is in order to make noncompliance with the condition more costly. But this goes so far as to pull the rug out from under Dole as well, as we will see in note 258. Berman, supra note 245, at 1330 n.202 (citing Bagenstos as mistaken when he says that “Berman treats a federal funding condition as imposing a penalty whenever the law has the purpose of influencing the states' behavior” because Bagenstos is ignoring that such purpose is fine if it is accompanied by some other purpose that would survive to justify the threatened action even once the threat recipient does not satisfy the condition).

255 New York v. United States, 505 U.S. 144, 188 (1992) (stating “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program”). See Printz v. United States, 521 U.S. 898, 939-70 (1997) (Stevens, J., dissenting) (critiquing the textual and historical grounding of such a right). See also Vicki, C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180, 2183-92 (1998)Google Scholar (doubting the historical basis of the “anti-commandeering” principle).

256 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602 (2012); Berman, supra note 245, at 1305-06.

257 Berman, supra note 245, at 1305-06.

258 Id. at 1333. See Bagenstos, supra note 235, at 894-98 (criticizing Berman on just this point).

259 Berman, supra note 245, at 1335-56.

260 Bagenstos, supra note 235, at 883.

261 Berman concedes he must also devise a cumbersome multi-factor test for proper disaggregation to assess not only whether individual amendments to spending programs are justified despite their improper purpose, but also whether existing provisions of spending programs can be decoupled and count as “new” going forward. Berman, supra note 245, at 1338-40.

262 Id. To the extent that Berman envisions additional doctrinal developments that might determine how many of the conditions the states can reject, and to what degree, before federal law can authorize withdrawal of funds because the game is not worth the candle, that additional doctrine will look similar to judicial elaboration of a core minimum health right. Courts would be declaring the aspects of health legislation that can be whittled down, and those aspects that should not. To do so, courts must rely on what offends their sense of minimally recognizable health provision, and then impose that threshold sense on federal legislators. They would be, namely, defining a core minimum.

263 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2603-07 (2012).

264 See Comm. on Econ., Soc. & Cultural Rights, General Comment No. 3: The Nature of States Parties' Obligations, U.N. Doc. E/1991/23 (Dec. 14, 1990) [hereinafter CESCR, General Comment No. 3] (discussing minimum core obligations that states have to their citizens); Exploring the Core Content of Economic and Social Rights: South African and International Perspectives 16, 64-67 (Danie Brand & Sage Russell eds., 2002). C.f. Geraldine Van Bueren, Of Floors and Ceilings: Minimum Core Obligations and Children, in Exploring the Core Content of Economic and Social Rights: South African and International Perspectives 183, 200 n.55 (the Constitutional Court of South Africa hesitance toward the minimum core approach) (citing Government of the Republic of South Africa and Others v. Grootboom and Others 2000 (11) BCLR 1169 (CC)); Minister of Health and Others v. Treatment Action Campaign and Others 2002 (5) SA 721 (CC) (S. Afr.) (illustrating courts' reluctance to set a core minimum).

265 Huberfeld et al., supra note 252, at 53, n.366 (“Justice Roberts dismissed it as politically impractical.”).

266 NFIB, 132 S. Ct. at 2606, n.14.

267 Id. at 2606-07.

268 Id. at 2630. “A State could hardly anticipate that Congress's reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically.” Id. at 2606.

269 PPACA § 2101(b), 42 U.S.C. § 1397ee(d) (2012). Governor Lepage of Maine had argued that these provisions must also be unconstitutionally coercive under NFIB, but consistent with my core health right account, this argument was rejected by the First Circuit. Mayhew v. Burwell, 772 F.3d 80 (2014), cert. denied., 135 S. Ct. 2805 (2015).

270 This speculation assumes that the core minimum conception does not outlaw conditional funding programs as a means of health provision altogether.

271 772 F.3d at 80. Incidentally, the principle of non-retrogression, or preventing the roll-back of existing levels of provision, is also recognizable as a feature of the right to health in human rights discourse. See Audrey R. Chapman, Core Obligations Related to the Right to Health and Their Relevance for South Africa, in Exploring the Core Content of Socio-Economic Rights, supra note 264, at 45-50.

272 NFIB, 132 S. Ct. at 2601-04.

273 Id. at 2604.

274 Id. at 2603-04.

275 Bagenstos, supra note 235, at 904 (stating that one way to interpret the mechanism by which states develop reliance is transitively, insofar as “a state's residents may have come to rely on the services provided by that program. These residents may include the individuals who receive health insurance through Medicaid, the health-care providers who are paid by Medicaid, or others.”).

276 NFIB, 132 S. Ct. at 2665 (Scalia, J., dissenting).

277 Id. at 2606.

278 Although this provision can be understood merely as a condition that specifying how the Medicaid money can be spent, and therefore could hardly bear a closer nexus to the funding that is put at risk. See Huberfeld et al., supra note 252 (identifying germaneness analysis as enfolded into the new coercion prong).

279 NFIB, 132 S. Ct. at 2606.

280 Berman, supra note 231, at 18.

281 Dworkin, TRS, supra note 1, at 91. See also Christina S. Ho, Health Rights at the Juncture between State and Market: The People's Republic of China, in The Right to Health at the Public/Private Divide: A Global Comparative Study 263 (Colleen M. Flood & Aeyal Gross eds., 2014) (discussing how the unit of relevance for certain forms of health provision is the community).

282 NFIB, 132 S. Ct. at 2603-04.

283 Id. at 2605-06.

284 Id.

285 Id. at 2606 (Justice Roberts notes that those under 133% of poverty but not previously covered are not the “neediest among us,” a profoundly political judgment).

286 Huberfeld et al., supra note 252, at 25.

287 NFIB, 132 S. Ct. at 2641 (Ginsburg, J., concurring in part and dissenting in part).

288 Tummino v. Torti, 603 F.Supp.2d 519 (E.D.N.Y. 2009).

289 Beal v. Doe, 432 U.S. 438, 440-41 (1977).

290 Id. at 445 (carving-out nontherapeutic abortions from Medicaid coverage does not violate the cross-cutting federal statutory requirement of reasonableness.); White v. Beal, 555 F. 2d 1146 (3d Cir. 1977). See generally Ho, supra note 6, at 157-65 (explaining that Medicaid provides matching funds for states to provide medical assistance meeting certain conditions, including a principle requiring that states establish “reasonable standards … for determining … the extent of medical assistance under the plan which … are consistent with the objectives of [Medicaid].”) (citing 42 U.S.C. § 1396a(a)(17)).

291 Maher v. Roe, 432 U.S. 464, 481 (1977).

292 Roe v. Wade, 410 U.S. 113, 164-66 (1973).

293 Maher, 432 U.S. at 473-74.

294 Roe v. Casey, 464 F.Supp. 487, 496 (E.D.Pa. 1978).

295 Preterm, Inc. v. Dukakis, 591 F.2d 121, 126-27 (lst Cir. 1979).

296 Hyde Amendment, Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434 (1976).

297 Initially, the Hyde Amendment included exceptions if the mother faced endangerment of life, severe endangerment of health, or in cases of rape or incest. Id. In the 1980's, the Congress pared these exceptions back to instances where the life of the mother was endangered. Supplemental Appropriations and Rescission Act of 1981, Pub. L. No. 97-12 § 402, 95 Stat. 14, 95-96 (1981).

298 Ctr. for Reprod. Rights, Whose Choice? How the Hyde Amendment Harms Poor Women, (Sept. 13, 2010), http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Hyde_Report_FINAL_nospreads.pdf?_ga=1.126399437.1959154140.1477102676 [https://perma.cc/CU9U-NELB].

299 Harris v. McRae, 448 U.S. 297, 326 (1980).

300 Webster v. Reprod. Health. Servs., 492 U.S. 490, 521-22 (1989).

301 Id. at 495.

302 Id. at 509. Chief Justice Rehnquist's opinion continued, “‘[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.’” Id. at 507 (quoting DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 196).

303 42 U.S.C. § 1396a(a)(17).

304 See, e.g., White v. Beal, 555 F.2d 1146, 1151-52 (3d Cir. 1977).

305 Webster, 492 U.S. at 511, (quoting Poelker v. Doe, 432 U.S. 519, 521 (1977)).

306 Harris v. McRae, 448 U.S. 297, 325 (1980).

307 Pinneke v. Preisser, 623 F.2d 546, 548 n.2 (8th Cir. 1980) (“This standard of medical necessity is not explicit in the statute, but has become judicially accepted as implicit to the legislative scheme and is apparently endorsed by the Supreme Court.”).

308 Id. at 549.

309 Id.

310 Id.

311 Id. at 550.

312 Smith v. Rasmussen, 249 F.3d 755, 760 (8th Cir. 2001) (“[c]osmetic, reconstructive, or plastic surgery performed in connection with certain conditions is specifically excluded”) (quoting 441 Iowa Admin. Code r. 78.1(4)(b) (2013)).

313 See id. at 761 n.5.

314 Id. at 760.

315 Id.

316 Id. at 761.

317 Id. at 761-62.

318 Id. at 760.

319 Pinneke v. Preisser, 623 F.2d 546, 549 (1980).

320 Smith v. Rasmussen, 249 F.3d at 761 (quoting Alexander v. Choate, 469 U.S. 287, 303 (1985)).

321 The fight takes place along these lines for male sexual health matters too, though carve-outs are resisted in the story of Viagra coverage. The carve-out of Viagra from Medicaid was pre-emptively prohibited by CMS, the U.S. federal agency in charge of Medicaid, citing the White v. Beal lineage of cases. The reasoning of these cases tended to restrict prescription drug carve-outs, even though prescription drugs were optional Medicaid benefits. See David, F. Chavkin, Medicaid and Viagra: Restoring Potency to an Old Program?, 11 Health Matrix 189, 207 (2001)Google Scholar (citing Health Care Financing Admin., Drug Policy: Medicaid Coverage of Viagra (Nov. 30, 1998), https://www.medicaid.gov/Federal-Policy-Guidance/downloads/smd103098.pdf [https://perma.cc/27PV-F337]. This directive supplemented the State Medicaid Directors' Drug Rebate Program Release No. 81, issued on July 2, 1998. See also HCFA Tells States to Pay for Viagra; Pledges to Conduct Rigorous Monitoring, 7 BNA Health L. Rep. 1096 (1998).

While this administrative action may have forestalled judicial interference in the U.S., the issue did arise in the United Kingdom. The UK judges also followed the pattern I have described here, striking the National Health Service (NHS) interim guidance imposing a moratorium on the prescription of Viagra, and relying for their invalidation on the exceptions allowed despite the moratorium. R v. Secretary of State for Health, ex parte Pfizer, Ltd. [1999] EWHC (Admin) 504 [33], 51 BMLR 189.

322 NCD 140.3, Transsexual Surgery, Docket No. A-13-87, Decision No. 2576 (Dep't Health and Human Servs. May 30, 2014 (appeals board), http://www.hhs.gov/dab/decisions/dabdecisions/dab2576.pdf [https://perma.cc/ZW4M-B69R].

323 Letter from John O'Brien, Director of Healthcare and Insurance, U.S. Office of Personnel Management, to All Federal Employees Health Benefits carriers (June 23, 2015), https://www.opm.gov/healthcare-insurance/healthcare/carriers/2015/2015-12.pdf [https://perma.cc/SM2F-RUYZ].

324 See Jennifer Kates et al., Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S., Kaiser Family Found. (July 30, 2015), http://kff.org/disparities-policy/issue-brief/health-and-access-to-care-and-coverage-for-lesbian-gay-bisexual-and-transgender-individuals-in-the-u-s/view/footnotes/#footnote-159315-49 [https://perma.cc/RE9B-GXRJ].

325 Palmer v. Thompson, 403 U.S. 217, 224-26 (1971).

326 Simons distinguishes formal equality, or “lexical equality” in his vocabulary, which he concedes may be problematic as a norm, from other types of egalitarian, or comparative norms. Kenneth, W. Simons, The Logic of Egalitarian Norms, 80 B.U. L. Rev. 693, 723-729 (2000)Google Scholar. By rejecting formal equality (“lexical” equality) as an explanation, I am not rejecting that health values have, and should have, an egalitarian cast.

327 Peter, Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537, 540 (1982)Google Scholar.

328 Id. See also West, Reimagining Justice 121-24 (2003) (describing critical legal studies scholars' observations along these lines); Paul, Gowder, Equal Law in an Unequal World, 99 Iowa L. Rev. 1021, 1032 (2013)Google Scholar; Christopher, J. Peters, Equality Revisited, 110 Harv. L. Rev. 1210 (1997)Google Scholar. Cf. Simons, supra note 338; Kenneth W. Simons, Equality as a Comparative Right, 65 B.U. L. Rev. 387, 390, 394 (1985).

329 Simons, supra note 326, at 728 (conceding that he in a sense does “partially agree with Westen's early conclusion that ‘equality’ is a misleading and often empty concept, and should be ‘banished’ from our discourse. For I do agree that the [treat likes alike] conception of equality should be discarded.”).

330 Id. at 695.

331 For the formulation of “identically situated” as a way to render formal equality nontautological (though arguably no more useful), see Peters, supra note 328, at 1223.

332 See supra text accompanying notes 86-93 (medical care and human flourishing resist codification).

333 Simons, supra note 326, at 696.

334 Notably, Simons does not maintain that even equality-only claims can necessarily all be leveled down.

335 Peters, supra note 328, at 1212 (emphasis in original).

336 For a related analysis of how courts adopted a “minimum protection” stance rather than “equal protection” approach toward the rights of the poor, yet for administrability reasons, often chose to “level down,” see Michelman, Foreword, supra note 19, at 7.

337 Sunstein, supra note 148; David Baake, Obituary: Chevron's “Major Questions Exception,” Harv. Envtl. L. Rev. (Aug. 27, 2013), http://harvardelr.com/2013/08/27/obituary-chevrons-major-questions-exception/ [https://perma.cc/XBH2-XFX3] (specifically pointing to the major questions exception as an obstacle to our collective ability to “tackl[e] major threats to human health and welfare”).

338 See, e.g., Prah Ruger, supra note 83 (using the Aristotelian capabilities approach).

339 Contra Daniels & Sabin, supra note 61, at 47-49 (calling for a “case law” of health rationing).

340 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 553-71 (2001).

341 See supra text accompanying note 183.

342 King v. Burwell, 135 S. Ct. 2480, 2488 (2015) (“In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation,” and then declaring, “This is one of those cases,” because “[w)hether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance ….”) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). See also Berman, supra note 129 (on the exceptionalism of doctrinal application in Brown & Williamson).

343 Bagenstos, supra note 235, at 874-80.

344 Boreali v. Axelrod, 71 N.Y.2d 1 (1987). See also Gellhorn and Byse's Administrative Law: Cases and Comments 617-618 (Peter L. Strauss et al. eds., 11th ed. 2011) (noting that New York in Boreali has crafted a nondelegation principle that strikes down more legislation).

345 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene, 970 N.Y.S.2d 200, 205 (App. Div. 2013) (capping soda portion sizes at sixteen ounces in certain retail locations).

346 See Outterson, supra note 184 (discussing the hurdles public health regulations, such as the Vermont Prescription Confidentiality Law, must jump over).

347 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (finding that the court should not give the agency deference when interpreting the FDCA because Congress specifically spoke to the issue at hand).

348 See, e.g., Moncrieff, Safeguarding, supra note 20, at 665-71. See also Randy, E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & Liberty 581, 586 (2010)Google Scholar.

349 See, e.g., Consolidated Freightways v. Kassell, 450 U.S. 662 (1981) (for an interstate commerce clause case that may also be an example of this category).

350 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

351 Id. at 524-28.

352 Id. at 537-43.

353 See, e.g., West, supra note 8, at 893-94.

354 Id.

355 Horwitz, supra note 8, at 393-99.

356 Mark Kelman & Gillian Lester, Ideology and Entitlement, in Left Legalism/Left Critique, supra note 8, at 137-39. See also Jonathan Wolff, The Human Right to Health 36-37 (2012) (describing and questioning the critiques that in the global health context, health rights may elevate “interventions with a narrow focus, be it HIV/AIDS, malaria … or whatever,” such “that health workers are drawn to the better-funded campaign areas and away from general practice, which is left depleted of skilled personnel”).

357 See, e.g., Octavio, Luiz Motta Ferraz, The Right to Health in the Courts of Brazil: Worsening Health Inequities?, 11 Health & Hum. Rts. 33 (2009)Google Scholar. See also Solomon, R. Benatar, Human Rights in the Biotechnology Era, 2 BMC Int'l Health and Hum. Rts. 3 (2002)Google Scholar.

358 Horwitz, supra note 8, at 404.

359 Id. at 400. Cf. Tushnet, supra note 8, at 27 (explaining that this is not necessarily true, but is true for the historically contingent rights discourse we have developed).

360 West, supra note 328, at 81-82 (describing the attitude of acausality with respect to polluters, tobacco, and firearms).

361 Horwitz, supra note 8, at 402-03.

362 West, supra note 328, at 77.

363 See, e.g., Jean Bethke Elshtain, Public Man, Private Woman: Women in Social and Political Thought 298-353 (1981); Catharine A. Mackinnon, Feminism Unmodified: Discourses on Life and Law 93-102 (1987).

364 Robert W. Gordon, Some Critical Theories of Law and Their Critics, in The Politics of Law 642, 646 (David Kairys ed., 1998). He further elaborates, “[T]he rhetoric of rights can be dangerously double-edged, as the black civil rights movement has also discovered. Floor entitlements can be turned into ceilings (you've got your rights but that's all you'll get).” Id. at 657.

365 Tushnet, supra note 8, at 32.

366 Id.

367 For the notion of higher legislative enactment costs, see Matthew, C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 Yale L.J. 2 (2008)Google Scholar.

368 Fee, supra note 118, at 121.

369 White, 555 F.2d 1146.

370 Brown & Williamson, 529 U.S. 120; N.Y. Statewide Coal. of Hispanic Chambers of Commerce, 110 A.D.3d 1.

371 NFIB, 132 S. Ct. at 2566.

372 Fee, supra note 118, at 117-27.

373 N.Y. Statewide Coal. of Hispanic Chambers of Commerce, 110 A.D.3d at 14.

374 See Feinberg, Nature and Value, supra note 36 (describing the hypothetical Nowheresville in order to point out the importance of individuals claiming on behalf of their own rights).

375 Westen, supra note 327, at 580 (citing Craig L. Carr, The Concept of Formal Justice 39 Phil. Stud. 211, 223 (1981)).

376 For this feedback loop, see Laurence, Claus, Law's Evolution and Human Understanding, 51 San Diego L. Rev. 953, 961 (2014)Google Scholar. See also Niklas Luhmann, Law as a Social System (1993); Ho, supra note 217 (providing an application of this idea to the content of legal decisions relating to health); Linda, Ross Meyer, Unruly Rights, 22 Cardozo L. Rev. 1, 9 (2000)Google Scholar (“The reality of human life is that what counts as reasonable is in part conformity to social expectations … not innate reason.”).

377 Enthoven, supra note 109.

378 Contra Fee, supra note 117.

379 Robert, Post, Law and Cultural Conflict, 78 Chi.-Kent L. Rev. 485, 505 (2003)Google Scholar (noting the importance of “establish[ing] antihegemonic domains in ways that liberal egalitarian values never can.”).

380 Ho, supra note 7, at 167.

381 Meyer, supra note 377, at 49.

382 Id.