Introduction: Four Views on Healthism
18 Marq. Benefits & Soc. Welfare L. Rev. 189 (2017).
15 Pages Posted: 20 Dec 2017
Date Written: December 19, 2017
What does it mean to discriminate based on health? This is an introduction to a symposium dedicated to our forthcoming book, Jessica Roberts & Elizabeth Weeks, Healthism: Health Status Discrimination and the Law (2017). It provides an overview of the articles contributed by Lindsay Freeman Wiley, Brendan Maher, Jennifer Bennett Shinall, and Jacqueline Fox. Our book, and the symposium, broadly explore the topic of healthism, a concept we repurpose to describe undesirable discrimination based on health status.
The U.S. Constitution requires that people receive equal protection regardless of their race, ethnicity, national origin, or religion, absent a compelling governmental interest. To a somewhat lesser degree, the government is prohibited from discriminating on the basis of gender, illegitimacy, and, most recently announced in the Supreme Court’s landmark Obergefell v. Rogers decision, sexual orientation. By statute, Congress has limited certain private actors from discriminating also on the basis of disability, pregnancy, genetic information, immigration status, or military affiliation. Conspicuously absent from this list of protected statuses though, is health. Should the law allow unhealthy individuals to be treated less favorably than healthy ones? Or should we recognize a new type of impermissible discrimination, that is to say, healthism? “Healthism,” like the other “isms” that have preceded it, represents socially undesirable differentiation on the basis of a particular trait, in this case health status. So used, the term carries a pejorative meaning. But not all differentiation on the basis of health necessarily constitutes healthism. In fact, differentiating on the basis of health can be neutral and, in some cases, even desirable. Hence, our project is to distinguish the “good” health-based distinctions from the “bad,” or “healthist,” ones. This book surveys and evaluates the legal regulation of health in a variety of settings, both historically and especially in the wake of recent comprehensive federal health-care reform. The central suggestion in this book is that the law, and, more generally, society at large, should be attuned to the pervasiveness of an under-recognized and under-theorized form of discrimination based on health status. This book stops short of offering an overarching solution to the problem of health-status discrimination across contexts. What we offer instead is a vocabulary and rubric for naming and categorizing the troubling phenomenon.
Keywords: health law, healthism, health care, stigma, status, insurance, discrimination, illness, sickness, unhealthy, smoking, tobacco use, overweight, obesity, health equality, health justice, Patient Protection and Affordable Care Act of 2010 (ACA), Obamacare
JEL Classification: K19, K23, K29, K32, I11, I13, I14, I18
Suggested Citation: Suggested Citation