Pleased today to welcome a contribution from Elizabeth Weeks, Associate Dean for Faculty Development and J. Alton Hosch Professor of Law here at the University of Georgia School of Law. Weeks concentrates her teaching and scholarship in fields of law related to health care. In the post below, she introduces her new co-authored book, which will be of great interest to all concerned about the human right to health. It will be the subject on Wednesday, February 27, of a Georgia Law book panel featuring Law Professors Jennifer Bennett Shinall of Vanderbilt, Stacey Tovino of Nevada-Las Vegas, Ani Satz of Emory, and Nicolas P. Terry of Indiana-Indianapolis.

I am delighted to announce the recent publication by Cambridge University Press of my book, Healthism: Health Status Discrimination & the Law, co-authored with Jessica L. Roberts, Alumnae College Professor in Law  and Director of the Health Law & Policy Institute at the University of Houston Law Center.

Healthism proposes a new protected category – the unhealthy – and examines instances of discrimination against the unhealthy in multiple contexts:

• Can an employer refuse to hire someone who tests positive for nicotine or alcohol?
• Can an airline or movie theater require overweight customers to purchase two seats?
• Can the government condition public assistance on wellness program participation or work activity?
• Can a doctor refuse to treat a patient who has multiple health conditions and a history of noncompliance?
• Can the mayor of New York City ban large-portion sugary drinks?

Our book considers these and a host of other examples. It concludes that some operate as normatively wrong – or “healthist” – laws, policies, or practices. Others, however, are not only permissible, but also may be desirable, inasmuch as they encourage or support healthier lifestyles.

This book’s most important contributions are:

• To introduce the concept of healthism into the lexicon; and
• To invite ongoing dialogue about the merits and demerits of treating individuals differently based on their health status.

The genesis of our healthism project was the Patient Protection and Affordable Care Act of 2010, or ACA, which largely prohibits health status discrimination in health insurance in the United States.  Specifically, the ACA prohibits insurers from denying coverage based on preexisting conditions or charging higher premiums based on individual risk factors.

In 2010, single-payer health system, or a national health system, or even “Medicare for All,” were (and likely remain) political nonstarters in the United States. President Barack Obama’s signature law, the ACA, instead effected a sort of mandatory mutual aid society, a compelled communitarian approach, to health care.  In order to ensure that coverage for the unhealthy remained affordable, the law required most Americans to obtain health insurance – whether through eligibility for a government program or employer-sponsored plan, or by purchasing on the individual and small-group market – with government subsidies for some.

As of January 1, 2019, however, a critical pillar of that legislative design has been removed:

According to the Tax Cuts and Jobs Act, or TCJA, a law enacted in November 2017 under President Donald J.  Trump, the tax penalty associated with the so-called individual mandate no longer applies.  Americans now again are free to “go bare,” without any health insurance, or to purchase short-term, catastrophic-only, or other high-deductible/low-premium, limited coverage.  Many plans on the market still operate with the antidiscrimination provisions and other protections required by the ACA; however, no one any longer is compelled to purchase them.

The effect may well be to make those plans less affordable for the unhealthy – those who most need comprehensive coverage.  TCJA is just one of several U.S. reforms that threaten to erode legal protections for the unhealthy and so to reintroduce legal and social acceptance of healthism.

Our book stops short of proposing a model law or draft constitutional provision to comprehensively address this problem. Instead, it offers readers a workable rubric to navigating the shifting landscape of permissible and impermissible health-status discrimination.