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Jessica L. Roberts & Elizabeth Weeks Leonard, What Is (and Isn't) Healthism, 50 Ga. L. Rev. 833 (2016), available at SSRN.

As we are all aware, the current political time is one of great upheaval and unsureness in numerous areas, with health care and the health care system repeatedly taking center stage. The change in the presidential administration coupled with the Republican majority in both houses of Congress have led to many new approaches to the health care system being proposed, debated, hurriedly being voted on, amended, withdrawn, and subjected to a hot and passionate debate. As this is going on, recent polling has made it clear that a significant percentage of the voting population in this country had no or minimal understanding about how health care laws affect them and their loved ones, leading to a pattern of voting in the 2016 elections that often appeared to be against voters’ self-interest.

As we grapple with analyzing and communicating the ramifications of proposed changes, the analytic approach to assessing the effect of health care policy delineated in Roberts’ and Weeks Leonard’s article, What is (and isn’t) Healthism, has much to offer in a climate wildly different than the one in which it was written. Healthism, as this article and a forthcoming book define it, is a form of discrimination based on a person’s health status. As the article states in the introduction, the passage of the Affordable Care Act in 2010 created significant protections for persons with health problems. For example, that law prevents discrimination in the health insurance market against those with preexisting conditions. Taking the question of disparate treatment further, the authors consider the possibility that a person’s health status could be the basis for disparate treatment in a number of other areas, such as employment and the provision of services, privileges, or opportunities. In light of the possibility of multiple arenas for this type of discrimination, the article asks when, if at all, the law should intervene to protect persons from these wrongs, and then presents a framework for answering that question.

The article is excellent, and gives an engaging analysis of this issue. Of particular interest to me in the current environment is the authors’ analytic framework for determining if healthism has occurred. There are seven different elements to guide the analysis, and health status distinctions that meet one or more of these elements are healthist and deserving of legal or policy intervention. The elements are as follows: If a distinction is 1. Driven by animus, 2. Stigmatizes individuals unfairly, 3. Punishes people for their private conduct, 4. Impedes access to health care, 5. Cuts off resources or otherwise limits the ability to adopt healthy life choices, 6. Produces worse health outcomes, or 7. Maintains or increases existing disparities, it is likely healthist.

One can add an examination of intersectionality as it relates to these elements, and to healthism, generally. Numerous groups of people are already at risk of baseless disparate treatment due to ethnicity, religion, gender, sexual or gender identity, disabilities, and numerous other criteria. Healthism can become much more harmful when it is combined with these unjust burdens.

Utilizing this framework to identify healthism and to pinpoint the occurrence of intersectionality that compounds injustice gives a crisp and comprehensible framing for the analysis of proposed changes to the health care system, and does so in a way that I think helps people outside of health policy understand more clearly what the proposed changes mean to them.

For example, the changes to Medicaid proposed in current Congressional legislative proposals include changes that are extremely damaging to people who are vulnerable to healthism. The proposed changes cut off access to health care by gradually eliminating Medicaid benefits. The changes impede people’s capacity to pursue a healthy lifestyle by imposing rigid work requirements as a prerequisite to receiving care. Analyzing the law through a lens of intersectionality, it becomes clear that it would have a disparate impact on the elderly who live in nursing homes, on women who rely on Medicaid for access to family planning and to maternity care, and on those who have disabilities, who often receive the bulk of their therapy, home care and health care through this program. Data already consistently show that minorities have poorer health outcomes and lesser access to care in the current system, and the changes would exacerbate those problems.

I highly recommend this article, and this method for analyzing future proposed systemic changes in an effort to educate and give voice to those who will suffer the most.

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Cite as: Jacqueline Fox, Healthism in the Current Political Climate, JOTWELL (July 27, 2017) (reviewing Jessica L. Roberts & Elizabeth Weeks Leonard, What Is (and Isn't) Healthism, 50 Ga. L. Rev. 833 (2016), available at SSRN),