Why It's Called the Affordable Care Act

9 Pages Posted: 19 Aug 2011 Last revised: 9 Jan 2012

See all articles by Nicholas Bagley

Nicholas Bagley

University of Michigan Law School

Jill R. Horwitz

UCLA School of Law; National Bureau of Economic Research (NBER)

Date Written: August 19, 2011


The Patient Protection and Affordable Care Act of 2010 (“ACA”) requires most Americans to obtain health insurance for themselves and their dependents by 2014. In a recent essay, Professor Douglas Kahn and Professor Jeffrey Kahn take issue with one of several justifications for what has become the “individual mandate”: that it solves the free-rider problem that arises when an uninsured individual receives care without paying for it, thus forcing providers to raise costs for paying (typically insured) patients. Kahn and Kahn claim that the free-rider problem has been exaggerated. Even if it were a meaningful problem, they argue, the ACA only resolves it by shifting the burden of uncompensated care from insured patients to taxpayers, thus substituting one type of free riding for another. Finally, they suggest that the free-rider trope hijacked the political debate and distracted from the ACA’s redistributive consequences.

These claims are unconvincing. Kahn and Kahn can maintain that the free-rider problem has been exaggerated only because they define “free rider” to mean something it does not. Although their claim that the ACA substitutes provider-subsidized free riding for taxpayer-subsidized insurance is accurate, Kahn and Kahn fail to appreciate the overwhelming strength of the latter approach. And their belief that the free-rider argument somehow prevented debate about the ACA’s distributional consequences is, as an empirical matter, simply false. More fundamentally, Kahn and Kahn never acknowledge that achieving near-universal coverage through the private market depends on redistribution through community rating. The ACA’s redistribution is thus tied up with questions relating to the level of risk-rating that is acceptable in a decent society, the purpose of health insurance, and the moral urgency of covering the uninsured.

Keywords: Affordable Care Act, individual mandate, community rating, free rider, redistribution

JEL Classification: H50, H51, I10, I11, I18, K00

Suggested Citation

Bagley, Nicholas and Horwitz, Jill R., Why It's Called the Affordable Care Act (August 19, 2011). Michigan Law Review First Impressions, Vol. 110, p. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1912498

Nicholas Bagley (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Jill R. Horwitz

UCLA School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

National Bureau of Economic Research (NBER) ( email )

1050 Massachusetts Avenue
Cambridge, MA 02138
United States

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