by Wendell Potter
Judge Amy Coney Barrett testified that she would base her rulings about health insurance on how "the founders" might have intended. Her promise might have made sense if health insurance companies actually existed when the founders were around. Let me speak out of my experience as a former insurance executive to explain why her "originalist" approach to healthcare is laughable.
A huge part of the Affordable Care Act is the rule that bars insurance companies from dumping Americans with "pre-existing conditions." The inescapable fact is that, in 1787, our founders were not thinking about this. How do we know? The term did not exist yet. Not only did the term not exist, but neither did health insurance companies.
My former company, Cigna, started life in 1792, but did not get into health insurance until the 1900's. Ben Franklin was actually one of Cigna's founders, but old Ben himself knew little to nothing about health insurance. Why? In his day, the company insured ships. Later they got into the fire insurance business. All the founders were long dead and buried be health insurance was invented.
Another insurer, Aetna, dates back only to 1853, but not as a health insurer. Among its first customers were slave owners. Yes, Aetna insured slaves in its early days. And, like Cigna, did not get into health insurance until the late 20th century. Once again, no living founders by then.
Even the very idea of hospitals was new in the 18th century, and chances are slim that any founder ever stepped into one. The first hospital was built in 1751, but its mission was "to care for the sick, poor and insane who were wandering the streets of Philadelphia." The founders had no concept of co-pays and deductibles.
Health insurance was not even a thing when my own parents were born in the Tennessee hills. The first health plan dates back to the Great Depression when a hospital administrator in Dallas came up with the idea. It caught on and spread across the nation under the name Blue Cross.
All of this makes it quite clear that it was entirely impossible for the founders to know, even to imagine, that health insurance would become a huge industry, let alone that it would evolve into a for-profit industry that would one day refuse their products to people with pre-existing conditions. The practice only became common after for-profit life, property and casualty insurers (e.g. Cigna, Aetna) got into the lucrative health insurance business in the 1980's and 1990's.
It literally took an act of Congress — the Affordable Care Act, passed over the loud protests of the insurance industry — to ban the practice of denying coverage to persons with pre-existing conditions, a term the industry itself was allowed to define, opening up the inclusion of "conditions" from cancer to acne. If the Supreme Court strikes the ACA down on November 10, canceling coverage for hundreds of thousands of people will commence in a hurry. In addition, coverage for children and young adults will be lost, as will prescription drug discounts for seniors.
The Affordable Care Act did not solve every problem. There is plenty of room for improvement and much work needs to be done. Still, we are far better off with it than without it. To strike it down based on the writings of people living in the 1700's, when health insurance did not even exist, boggles the mind of this former insurance company executive. I hope it has the same effect on at least five Supreme Court Justices.
Wendell Potter is an American consumer advocate, New York Times bestselling author, consultant, and former health insurance industry executive. He serves as the Board President of "Business Leaders for Health Care Transformation" and the "Center for Health and Democracy."
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