The Florida Bar

Florida Bar Journal

Healthism: Health-Status Discrimination and the Law

by Jessica L. Roberts & Elizabeth Weeks Book Reviews

HealthismIn response to a slew of actions or omissions in the contexts of employment, public accommodations and housing, health insurance and health care, tort law, and contract law, that constitute real or perceived discrimination or breaches of privacy against members of particular protected population cohorts, various pieces of federal and state civil rights legislation have proliferated. These statutes, and the regulations that implement them and the judicial decisions that interpret and apply them, are aimed at a constellation of objectionable “isms” predicated on traits such as race, sex, and national origin. Apparently, the resulting legal landscape is not comprehensive or confusing enough for the law professor authors (Roberts at the University of Houston and Weeks at the University of Georgia) of this new book, who propose to add their newly created concept of “healthism” to the list of pervasive social wrongs to be corrected by adding even more laws to the mix.

The origins of the authors’ “healthism project” derives from their dissatisfaction with a key facet of current antidiscrimination and privacy laws. Although the Americans with Disabilities, Affordable Care, Employee Retirement and Income Security, Genetic Information Nondiscrimination, and Health Insurance Portability and Accountability acts all protect individuals with disabilities, these laws and most of their state counterparts all define “disabilities” in terms of traits (cancer, bipolar disorder, diabetes). Roberts and Weeks want to expand protectability, for purposes of justifying additional legal interventions, to health behaviors or statuses (such as smoking or obesity) that have notyet progressed to a diagnosed condition or trait qualifying for the disabled category today. With the protected population thus enlarged, the authors target for analysis and advocacy those actions, omissions, and laws that distinguish or differentiate intentionally or unintentionally among people who have different health traits or statuses.

This description of healthism sets up a potentially boundless universe of transgressions. Nonetheless, the authors purport to be reasonable, at least in theory: “[O]ur thesis is that differentiation on the basis of health status is desirable when it promotes responsible, healthy behaviors, yet undesirable when it perpetuates or exacerbates existing health disparities and social disadvantage…We conclude that sometimes the law should permit — and even encourage — health-based distinctions and sometimes it should prohibit them.” As a roadmap for sorting out good vs. bad health-based distinctions, the authors offer the four uncontroversial but amorphous and frequently contradictory goals of health welfare, health liberty, health equality, and health justice. Trying to categorize specific private conduct and legal enactments according to this normative rubric produces fairly easy answers in some cases (employer-sponsored voluntary smoking cessation programs are positive, for instance, while discriminatory pricing of health-insurance premiums based on the patient’s health history is objectionable), but in most cases firm answers are illusory, with the healthism project’s main contribution being to serve as a catalyst for further discussion.

Professors Roberts and Weeks do a scholarly job of presenting the interesting ideas that comprise the academic space they have successfully claimed for themselves. The healthism project has spawned an array of law review literature written by the two authors both individually and collaboratively, and Healthism is largely the distillation and culmination of those published articles. Roberts and Weeks have given us some important intellectual food for thought. The persuasiveness and ultimate utility of that inspired contemplation is yet to be determined.

Marshall B. Kapp of Tallahassee is a member of The Florida Bar.