One consequence of the Affordable Care Act (ACA) is that government will come to play a more extensive role in healthcare decision-making by individuals and their providers. The ACA does not directly regulate access to health services, but by means of a system of funding, mandates, and penalties, it essentially requires many employers to provide, and most individuals to carry, a certain minimum level of health insurance. Governmental decisions about which medical services qualify as medically necessary and appropriate may take on a new and greater importance, because government officials will be required to decide what sorts of procedures must be covered by private insurers. In addition, decisions about what procedures will be covered by government-funded health care programs will arguably take on a new salience as the number of Americans covered by government-sponsored insurance plans is likely to increase.

Unfortunately, there is no universally accepted or clear-cut definition for medical necessity. This vagueness may prove problematic in light of the greater role for the government in healthcare decision-making under the ACA. If government defines the concept too narrowly, for example, or in ways that impose significant burdens on particular groups, there may be constitutional as well as ethical implications. Though the government’s decision to subsidize or withhold funding for the exercise of a constitutional right is generally not subject to heightened judicial scrutiny, this article argues that the manner in which the decisions are made, and the pervasiveness of the government’s role in the healthcare domain, may nonetheless put pressure on this constitutional rule. It therefore moves beyond the constitutional debate over the individual mandate to consider how and whether the implementation of the ACA, which arguably raises government involvement in health care decision-making to a new level, might create and influence new constitutional debates around health care access and the right to autonomous medical decision-making.


health, medical necessity, essential health benefit, negative right to health, Affordable Care Act, reproductive rights, abortion, 8th Amendment, state action doctrine, Health and Human Services, Institute of Medicine, benchmark plan

Publication Date


Document Type


Place of Original Publication

American Journal of Law & Medicine

Publication Information

38 American Journal of Law & Medicine 445 (2012)


COinS B. Jessie Hill Faculty Bio