In the United States, the understanding of health care and relationships in the health care and health insurance settings has evolved over the last century. In the past, care for one’s own health and the relationships between physicians and patients, hospitals and patients, and health insurers and insureds were understood as matters of private concern. Consequently, individuals were responsible for their own care, and parties voluntarily entered into such relationships relying upon private law, especially contract and tort law, to structure the relationships and define rights and duties. Treating health care as a matter of private concern and these relationships as a matter of private ordering did not, however, ensure sufficiently broad access to health care throughout American society.
With the passage of time, public law has become an increasingly employed means of expanding access to care, reducing economic and noneconomic barriers, and securing an environment in which individuals can pursue their own goods (including their own lives and health). Consequently, health care and provider-patient and health insurer-insured relationships have been redefined as matters of both private and public concern, and both private and public law now govern the complex, hybrid blend of private and public ordering that exists in the health care and health insurance settings. Like other public law initiatives enacted in the last century, the Affordable Care Act (ACA) put forward an array of initiatives to increase access to health care, reduce economic and noneconomic barriers, and secure an environment in which individuals can pursue their own goods. In putting forward these initiatives, Congress was cognizant of this hybrid blend of private and public ordering.
If the ACA represents something of a culmination of public law efforts to increase access and reduce barriers to care, the present moment is a good time to revisit some of the fundamental considerations, values, and principles that place legitimate limits on the scope of access to care. These considerations, values, and principles suggest that there are boundary areas that should be observed in both private and public law. This Article puts forward two boundary areas for discussion: (1) the professional provider’s judgment about medical necessity, effectiveness, and appropriateness; and (2) the provider’s judgment on matters of conscience in the provision of care.