Grading the ACA as Equal Protection Statute

The Affordable Care Act is sprawling.  Some of its myriad provisions may (or may not!) reduce healthcare costs.  Think of accountable care organizations, the hospital readmission reduction program, or even the preventive services mandate.  And so, the Act’s success is often evaluated by asking whether it has helped reduce healthcare costs.  (See, e.g., David Cutler here.)

Other of the ACA’s provisions are intended to promote financial security in the face of illness.  The Act’s most litigated provisions, requiring that people buy insurance, expanding Medicaid, and creating exchanges, can be understood primarily in this light.  And so, the Act’s success is also often evaluated by asking whether it has truly promoted financial security.  (See today’s New York Times piece from Margoret Sangor-Katz on the subject of underinsurance post-ACA, or Aaron E. Carroll’s take from December.)

A third way of understanding the ACA’s reforms–and evaluating its success or failure–too often gets left out (as it was by the NY Times here): The ACA can perhaps most coherently be thought of as an equal protection statute.

Think about it.  While much of what the Act does is hard to measure or up for debate, many of the law’s provisions unambiguously and concretely promote equality of various stripes.  The Act prohibited insurers from discriminating on the basis of health either in selling insurance to new beneficiaries or in pricing premiums–essentially creating a new statutory right to non-discrimination on the basis of sickness.  That right is “enforced” by other aspects of the law, too–the National Institute on Minority Health and Health Disparities, for example, has money and a mandate to promote health equality across regions and populations.

The ACA promotes equality in other senses, too.  It promotes financial equality in the United States by forcing significant wealth redistribution from rich to poor–through taxpayer subsidies on the exchanges and through Medicaid expansion.  And it creates (to some degree) a new equality of access to coverage across our fragmented system, insofar as the exchanges offer government-subsidized coverage even to those who do not have access to employer insurance (see Allison Hoffman’s article here for a somewhat skeptical take on that).

The success or failure of the ACA as an equal protection statute will still depend to some extent on how its measures promoting equality regardless of health, geography, race, employment, etc. are put into operation.  A law is only as effective as its enforcement, as evidenced by the recent and ongoing work of advocacy groups and researchers to uncover and press regulators to bring an end to adverse tiering by insurers designed to discriminate against those with HIV/AIDs.