'Healthism': A Critique of the Antidiscrimination Approach to Health Insurance and American Health-Care Reform
Jessica L. Roberts
University of Houston Law Center
October 2, 2011
University of Illinois Law Review, Forthcoming
Discussions of health-status discrimination permeated the debate surrounding the 2010 health-care reform legislation, infusing those conversations with the language of civil rights. However, insurance is by its very nature discriminatory. Thus, an antidiscrimination paradigm is not the appropriate normative framework for addressing disparities in health-insurance coverage.
This Article identifies an unresolvable tension between the antidiscrimination approach embraced by health-care reform advocates and the current practices of the private, for-profit health-insurance industry, which the Affordable Care Act seeks to preserve. For-profit health insurance has historically disadvantaged individuals based on health status through risk-assessment and cost-sharing mechanisms. Proponents of health-care reform vilified these accepted business practices as producing untenable discrimination against the sick. Congress, therefore, adopted an antidiscrimination framework in the Affordable Care Act. Specifically, the statute forbids insurers from considering health-related factors in their rating and underwriting decisions. Yet these protections will ultimately fail to eliminate the disparities experienced by the sick in health insurance. As of 2014, individual and small-group insurers may base their rating decisions on age, geographic location, and tobacco use and large-group insurers may consider participation in wellness programs. These new rating mechanisms approximate health status, thereby disadvantaging the same populations as the existing system. Thus, while the Affordable Care Act may end health-status discrimination on its face it will not in its effect. Consequently, this Article proposes an alternate normative framework for addressing the problem of un- and under-insured Americans grounded in a universal right to basic health-insurance coverage. It concludes by teasing out examples of the universal right paradigm within the Affordable Care Act and exploring how those provisions could be improved to ensure that more Americans carry baseline health insurance.
Number of Pages in PDF File: 64
Keywords: Health, Health Care, Health Insurance, Affordable Care Act, Reform, Legislation, HIPAA, GINA, Antidiscrimination, Discrimination, Health Status, Right to Health Care
JEL Classification: I11, I18, K10, K19, K32Accepted Paper Series
Date posted: February 9, 2011 ; Last revised: October 3, 2011
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