The Puzzling Consensus in Favor of the Genetic Information Nondiscrimination Act

Slate's blog on legal issues.
May 4 2008 11:26 PM

The Puzzling Consensus in Favor of the Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act, which bans certain types of genetic discrimination by employers and insurers, passed the House by a vote of 414 to one, and the Senate by a vote of 95 to zero. That means it's a good idea, right? Wrong.

Suppose an insurance company wants to offer a policy capped at $10,000 over a year. It has two types of potential clients: high-risk types who have a 0.05 risk of suffering a $10,000 injury and low-risk types who have a 0.01 risk of suffering a $10,000 injury.  In expected terms, the high-risk types cost the insurer $500 each, and the low-risk types cost the insurer $100 each.

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Consider the following question. If the insurance company can distinguish potential clients on the basis of easily visible markers (such as age), do you think it should be able to offer an expensive policy for high-risk types ($500) and a cheap policy for low-risk types ($100)?

If the insurer can do this, then everyone gets insurance who wants it. If the insurer can't do this, then fewer people will. The insurer can't offer policies for $100, for then the high-risk types will snatch them up, and the insurer, receiving $100 and paying $500 per person, will go out of business. If it offers policies for, say, $250—the average cost for the two types—the business will still probably not be sustainable. All or nearly all the high-risk types will buy the policy, while many low-risk types will be reluctant to pay so much for insurance against a low risk. The average cost will thus rise above $250, while receipts will continue to be $250 per person. Perhaps the insurer will offer only $500 policies, in which case half the population—the low-risk types—must go without insurance that they desire.

Most people agree that insurers should be able to discriminate on the basis of risk. We don't expect a 25-year-old to pay the same premium for life insurance that a 90-year-old must pay.

Suppose, then, that the types cannot be distinguished on the basis of a visible marker, but a simple checkup with a doctor will determine which type a person belongs to, perhaps based on a blood test that determines whether the person currently has a dangerous disease. Should the insurance company be permitted to offer the cheap $100 insurance policy only to people who obtain a doctor's certification that they belong to the low-risk group? If you think that insurance companies should be able to discriminate on the basis of visible markers such as age, you ought to think that they should be able to discriminate on the basis of doctors' certifications. If the insurance company should be able to deny insurance to a person visibly dying from a disease, then it should be able to deny insurance to a nonvisibly dying person on the basis of a blood test. There is no morally relevant distinction between looking at the person's outer shell and looking at his blood under a microscope.

Suppose, now, that a person's risk type is based not on a simple blood test that determines whether he is infected with a particular disease, but on a genetic test that determines whether he has a greater than normal susceptibility to a particular disease. Should the insurance company be permitted to offer the cheap insurance policy only to people who obtain a doctor's certification that a genetic test shows that they belong to the low-risk group? If you think that insurers should be able to discriminate on the basis of visible markers and on the basis of simple doctors' tests for the presence of dangerous diseases, then you should think they should be able to discriminate on the basis of genetic tests. There is no morally relevant distinction between looking at a person's blood for the evidence of infection and looking at his DNA for evidence of susceptibility to a disease.

Or, at least, none that I can find.  The only argument in favor of banning genetic discrimination is that employers and others "misuse" genetic information. If this is true, then misuse of genetic information should be banned, not the proper use of genetic information for the purpose of assigning people to different risk pools. And if genetic information can help determine whether a person is suitable for a particular job, perhaps one that is dangerous for some types of people but not others, then it should not be considered misuse for employers to make hiring and job-assignment decisions on the basis of that information—no more than taking into account that person's visible physical abilities such as strength.

Another concern is that Americans are refusing to take genetic tests because they fear that their test results will be used against them by insurance companies and employers. But this is like saying that we shouldn't let insurers condition insurance on a visit to the doctor's office because then Americans would refuse to see the doctor, lest health information be used against them. The opposite is more likely. As genetic tests improve, insurers would require customers to take the tests if they want to purchase the cheap, low-risk-type policies.  People would have to undergo genetic tests, just as today they have to visit the doctor if they want insurance.

The only explanation for the enthusiasm for GINA is that there is an inchoate feeling among people that there is something wrong with the way the insurance market operates. After all, as long as insurance is permitted, insurers will offer cheaper rates to lower-risk people, which seems unfair to higher-risk people, especially those who are high-risk because of bad luck in the genetic lottery rather than because of a choice to pursue high-risk activities like motorcycle riding.

But this is like saying that it is unfair for employers to offer higher salaries to people who are talented, and whose talent can be traced, as it almost always can, to a lucky outcome in the genetic lottery. After GINA, employers can still discriminate against a person whose genes have bestowed him with a bad smell, awkward social skills, or a weak grasp of arithmetic. GINA does not ban discrimination on the basis of genetic information. GINA bans only discrimination on the basis of genetic information that has not yet manifested itself in observable characteristics or behaviors but that is likely to in the future. There is no sense in this distinction.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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