This Article identifies an unresolvable tension between the anti-discrimination approach embraced by health-care reform advocates and the current practices of the private, for-profit health-insurance industry, which the Patient Protection and Affordable Care Act (ACA) seeks to preserve. Discussions of health-status discrimination permeated the debate surrounding health-care reform, infusing those conversations with the language of civil rights. Insurance, however, is by its very nature discriminatory. Thus, an antidiscrimination paradigm is not the appropriate normative framework for addressing disparities in health-insurance coverage. For-profit health insurance has historically disadvantaged individuals based on health status through risk-assessment and cost-sharing mechanisms. Proponents of health-care reform vilified these accepted business practices as producing untenable discrimination against the sick. Congress, therefore, adopted an antidiscrimination framework in the ACA. Specifically, the statute forbids insurers from considering health-related factors in their rating and underwriting decisions. Yet these protections will ultimately fail to eliminate the disparities experienced by the sick in health insurance. As of 2014, individual and small-group insurers may base their rating decisions on criteria including age, geographic location, and tobacco use, and large-group insurers may consider participation in wellness programs. These new rating mechanisms approximate health status, thereby disadvantaging the same populations as the existing system. Thus, while the ACA may end health-status discrimination on its face, it will not in its effect. Consequently, this Article proposes an alternate normative framework, grounded in a universal right to basic health-insurance coverage, to address the problem of un- and underinsured Americans. It concludes by teasing out examples of the universal right paradigm within the ACA and exploring how Congress could improve those provisions to ensure that more Americans carry baseline health insurance.
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