All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law

This Article is the second, and most important, installment in a three-part series that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness. The basic impetus for this historical, medical, and legal project is a belief that there exists no rational or consistent method of distinguishing physical and mental illness in the context of health insurance law. The first installment in this series narrowly inquired as to whether a particular set of disorders, the postpartum mood disorders, are or should be classified as physical or mental illnesses in a range of health law contexts.* This second installment is broader in scope and challenges the less comprehensive public and private health insurance benefits that are available to individuals who have illnesses traditionally classified as mental. In so doing, this Article proposes a reform of federal mental health insurance law. The third and final piece in the series undertakes a necessary correction of state mental health parity law.** Throughout this three-part project, the aim is to bring greater attention to the origins and evolution of the concept of health and to discredit the notion that individuals with mental health conditions are less deserving of legal protection and benefits than individuals with physical health conditions. The purpose of this particular piece is to explore in greater detail the reasons offered by legislators, regulators, judges, insurers, and other stakeholders for providing less comprehensive insurance benefits for individuals with mental illness, and to question the logic, scientific bases, and empirical accuracy of these reasons. In the end, this Article argues that federal health insurance law should not continue to discriminate against individuals with mental illness without adequate justification. Finding none, this Article proposes a reform of federal mental health insurance law. * See Stacey A. Tovino, Scientific Understandings of Postpartum Illness: Improving Health Law and Policy?, 33 Harv. J.L. & Gender 99 (2010). ** See Stacey A. Tovino, Reforming State Mental Health Parity Law, 11 Hous. J. Health L. & Pol’y 455 (2011)