Discrimination against the Unhealthy in Health Insurance

As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short, consumerist coverage vehicles (including health savings accounts) discriminate against the unhealthy by impact. This Article examines existing laws protecting against health status discrimination in health insurance, but these laws do not address impact discrimination. Recognizing that some might attempt to justify this disproportionate impact on unhealthy people by invoking a principle of actuarial fairness, the Article also reviews various laws prohibiting other forms of discrimination in health insurance in order to reveal our society’s willingness to elevate other social values above actuarial fairness. This Article calls for more careful scrutiny of consumerism’s effects and a sustained dialogue regarding the limits a just society should place on the burdens borne by unhealthy persons