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The Surprise Gift that Trumpcare Could Yield

May 8, 2017, 6:01 PM UTC

The U.S. Constitution is notable for its focus on proscriptions rather than prescriptions. Most of what this masterful charter does is guarantee freedom from government interference in individual liberties “rather than impose any affirmative obligation of the government to provide for the health or welfare of its citizens,” writes Erin C. Fuse Brown, an associate professor of law at Georgia State University’s Center for Law Health and Society in a fascinating 2013 paper.

Contrary to what many might expect, for example, the Constitution does not explicitly require the federal government or the states to protect the health of citizens—and, in fact, does not mention the word “health” anywhere in its 4,543 words or in any of its amendments. In Brown’s very readable law review article, she explains why—and cites another scholar, Puneet K. Sandhu, who sums up a few reasons why it would be challenging to affirm even if the framers had hoped to do so. “The problem of defining and implementing a right to health is threefold,” says Sandhu: “indeterminacy (how to characterize it), justiciability (how to enforce it), and progressive realization (how to raise the standard over time).”

Had the founding fathers been joined by the founding mothers, perhaps they might have enshrined this human right in the charter—as lots of other nations have done—but it’s important to acknowledge that, in the U.S. Constitution, no such explicit right is specified.

I bring this up because this absence (or call it omission, if you like) underlies the staunch opposition of many conservative Republicans to the Affordable Care Act—and to previous government efforts to provide publicly funded health care and insurance coverage to their citizens going back to the passage of Medicare in 1965.

This adamant opposition to creating a health “entitlement” that the Constitution does not itself entitle has made the ACA—or at least the statutory “right” to healthcare that it hoped to engender—“structurally fragile,” Brown concludes:

Passed amidst bitter partisan division and an ambivalent public…the right depends on private actors, private health insurance companies, and willing states to administer and participate in a newly transparent, competitive, and streamlined private health insurance market, while these same actors hesitate to invest in the infrastructure of this market due to uncertainty from legal and political challenges to the ACA. All of these challenges make it more likely, in the short term, that the ACA’s right to health care will be ephemeral or hollow—a quasi-superstatute rather than a durable superstatute.”

Which takes us to the latest bill passed by House Republicans to repeal and replace the ACA. Should it somehow pass muster with the Senate (which, in the bill’s current form, I cannot imagine), it might end up doing what Republicans seem to fear most: enshrining a citizen right to basic health care.

Why? Because the deal that secured the votes of the conservative House sect known as the Freedom Caucus, allows states to seek waivers that let them opt out of basic protections for some citizens—rules, for example, that prevent insurers from charging virtually anything they want to “cover” those with preexisting conditions or that demand that insurers provide certain basic health and preventive care services. Were these provisions to become law, they could result in some states, legislatively, providing one level of care or protection to some of their citizens and a different level to others—which, could violate the equal protection and fairness requirements of the Fifth and Fourteenth Amendments to the Constitution.

And here’s the rub: Where the courts have found a Constitutional right to healthcare, it has been with regard to those two Amendments. (As the Fourteenth Amendment says, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.”)

Such Constitutional protections have ensured that federal programs such as Medicare, the Veteran Administration’s TRICARE system (which provides benefits for active duty members of the military and their families), and the Emergency Medical Treatment and Active Labor Act (EMTALA) apply the same rules to everyone they cover. For instance, EMTALA, says Brown, “embodies the nonexcludable nature of the right to health care, because emergency care must be provided to anyone who shows up to an emergency room with an emergency medical condition in hospitals participating in Medicare.”

If Senate Republicans, against all odds, manage to narrowly pass a bill like that which passed the House of Representatives last week, they may end up doing what the ACA never could: getting the courts to say that basic healthcare for U.S. citizens is an enforceable right. That would be an ironic gift from Trumpcare indeed.

This essay appears in today’s edition of the Fortune Brainstorm Health Daily. Get it delivered straight to your inbox.