Health: Policy or Law? A Population-Based Analysis of the Supreme Court's ACA Cases.

This essay argues that it matters for the fate of health policies challenged in court whether courts consider health merely as a policy goal that must be subordinate to law, or as a legal norm warranting legal weight and consideration. Applying population-based legal analysis, this article demonstrates that courts have traditionally treated health as a legal norm. However, this norm appears to have weakened in recent years, a trend evident in the Supreme Court's first two decisions concerning the Affordable Care Act, and However, in its more recent Affordable Care Act decision, , the health legal norm is once again evident. Whether the Court will continue to treat health as a legal norm will prove critical to the deference and weight it grants health policies in the future.