Health Cover(age)ing

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 920. Health Cover(age)ing

Health Cover(age)ing

Rebecca L. Rausch(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 921

II. Fatness and Health Insurance ........................ 925
A. The Communitarian Model of Health Care ......... 926
B. An Anti-Communitarian Development: Health Insurance Fat Taxes .............................. 931
1. The Alabama Program ......................... 931
2. The Arizona Proposal .......................... 934
3. Programs in Corporate America ................ 935

III. Facts of Fatness ...................................... 937
A. Weighing the Body Mass Index .................... 937
B. Fatness Medicalized and Vilified ................... 943
C. Misleading Reliance on Science .................... 947

IV. Systemic Implications of Health Insurance Fat Taxes:
Fat Covering .......................................... 949

V. Fat Rights, Healthy Bodies, and Existing Legal Regimes .............................................. 957
A. Title VII and the ADA ............................. 958
B. The ACA .......................................... 959
C. Collective Cover-up ................................ 963

VI. Conclusion ............................................ 969

There is perhaps no greater fiction in the United States than the idea that we are worried about being fat because of its implications for our health . . . . [I]t is not because our obesity actually represents a verifiable health threat. Rather, it is because we are afraid of fat.(fn1)

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I. INTRODUCTION

Fearing fatness(fn2) blinds America from certain realities of body size, health status, and access to health care. American society, through the health care system and other mechanisms, has created a fat-thin dichotomy within which thin is good and fat is bad.(fn3) Recently, employers began reinforcing this dichotomy by imposing on employees whose weight renders them "obese" on the Body Mass Index (BMI) certain additional health insurance costs-referred to herein as health insurance fat taxes.(fn4) Stated otherwise, if an employee's BMI exceeds the employer-prescribed limit, that employee must pay more for health insurance than his or her thin colleagues, unless the fat employee attempts to slim down or provides the employer with a doctor's

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note stating that the weight cannot be lost.(fn5) Employers use these health insurance fat taxes to unevenly pass through to employees the costs of health insurance coverage, in an effort to reduce their own contributory costs for that insurance.(fn6) Simultaneously, employers reduce the insurance costs for thin employees who do not, at least based on their body sizes, drive up the overall costs.(fn7)

Essentially, health insurance fat taxes increase the costs of fatness. Those costs, however, are not limited to budgetary bottom lines. Fatness carries a heavy weight of systemic stigma.(fn8) Fat individuals are viewed as lazy, slovenly, and lacking self-control.(fn9) In general, fat people earn less money, find love less frequently, and feel more self-loathing than their thinner counterparts.(fn10) They regularly suffer through tormenting and teasing at schools, places of work, and the grocery store.(fn11) The costs of fatness run deep.

Rather than contributing to a solution, health insurance fat taxes contribute to the problems by imposing both overt and covert penalties for fatness. The overt financial and access repercussions speak for themselves. Covertly, health insurance fat taxes force fat individuals to cover(fn12) their fatness. Professor Kenji Yoshino describes covering as one of three methods of forced assimilation, the other two-converting and passing-being slightly better known.(fn13) Converting occurs when an individual is socially required to fundamentally change an underlying identity.(fn14) Passing occurs when an individual maintains the underlying identity, but is socially required to hide it.(fn15) Covering occurs when an individual acknowledges and embraces the underlying identity, but is socially required to make that underlying identity easier for others to ignore.(fn16) "Covering means the underlying identity is neither altered nor hidden, but is downplayed. Covering occurs when a lesbian both is and says she is a lesbian, but otherwise makes it easy for others to disattend her orientation."(fn17) Covering is systemically problematic for at least three reasons: first, it creates and reinforces social norms about people's identities; second, it undermines individuals' senses of self and self-worth; and third, it misplaces focus on a

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singular component of people's identities when identities are rarely that simple.(fn18) As will be explained further in Parts IV and V, this Article posits that health insurance fat taxes force fat individuals to cover their fatness by mandating an implicit acknowledgement that fat is bad and unhealthy. To escape the financial penalties, fat people must either follow a weight loss program, attempting to convert but probably failing,(fn19) or state that their fatness is beyond their control, rendering them helpless and victimized. Health insurance fat taxes do not hit fat people only in their wallets. This developing regime also strikes at personhood and identity by requiring fat individuals to admit and embrace the socially constructed vision of their bodies as plainly wrong.

These health insurance fat taxes classify individuals as good or bad, desirable or objectionable, rewarded or penalized, because of an identified health status factor that is evaluated on a scale having no basis in medical science and that might be wholly arbitrary vis-a`-vis actual health.(fn20) As will be discussed, scientists dispute the causes of fatness. One school of thought believes that fatness is a disease caused by genetics and other biologics, rendering fatness basically im-mutable.(fn21) Another school of thought believes that fatness is wholly mutable, caused not by biology but by choice and environmental factors, such as sedentary lifestyles and diets too rich in calorie-dense foods.(fn22) The truth probably lies somewhere between these two extremes, involving both nature and nurture, but that truth currently escapes modern science. Assuming such a combination of causes, health insurance fat taxes both penalize for an immutable characteristic (nature) and make the health care system more difficult for fat people to access by increasing coverage costs, which access they arguably need in order to change their body size (nurture). As discussed in Part III, the health care system presents fiscal, social, and emotional challenges for fat people; making the system even harder to access seems to miss the public policy mark.

In addition, the effects of fatness are more complex than modern medical science can yet fully appreciate.(fn23) Perhaps fatness causes diabetes, coronary artery disease, and other health problems. Conversely, perhaps fatness is merely a symptom of other conditions that standing alone has no causal relationship with overall health, despite any apparent correlative relationships. Fat people can have normal

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cholesterol counts, blood pressure, and blood sugar levels, but they are nonetheless financially penalized for their fatness under the health insurance fat tax regime. Either way, this new regime is flawed. If fatness causes other health problems, then fat people are precisely the ones who should be accessing the health care system, and yet they are also the ones who, because of health insurance fat taxes, face additional obstacles on their way to that system to manage their condition. Alternatively, if fatness is a symptom of something else and on its own yields no serious health consequences, then the penalty arises out of an arbitrary and irrelevant physical characteristic.

While the science can be debated, at bottom, the science bears limited relevance to the underlying argument set forth herein. Why choose fatness as the predominant identifier of increased health access costs? The answer must be that America fears fat; no similar access cost increase exists for the underweight, even though that body size can lead to significant health detriments and drive up the cost of care.(fn24) Further, where the public policy goal is to encourage people to be healthier, imposing health insurance fat taxes is a poor methodological choice.

Though uneven costs based on an arbitrarily selected physical feature might seem discriminatory, health insurance fat taxes are perfectly legal under federal law. The Americans with Disabilities Act of 1990(fn25) (ADA) and Title VII of the Civil Rights Act of 1964(fn26) (Title VII) generally do not protect people because of their fatness.(fn27) The recently enacted Patient Protection and Affordable Care Act of 2010(fn28) (ACA) also allows, and encourages, this new regime to continue, under the guise of wellness programs.(fn29) Ironically, despite the name, these programs do not necessarily measure wellness, nor are they required to do so.(fn30)

The legality of health insurance fat taxes generates another set of questions, namely, why the law functions in this particular way and

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whether it should function differently. This Article posits that the current functionality reflects a different type of covering, by which society forces itself to make certain of its underlying...