Saturday, July 25, 2020
Christina S. Ho (Rutgers), Commentary on Doe V. Mutual of Omaha, Rutgers Law School Research Paper (2020):
This commentary was written to accompany the opinion for Doe v. Mutual of Omaha, rewritten from a feminist perspective. Doe v. Mutual of Omaha 179 F.3d 557 (7th Cir. 1999) was a notorious Americans with Disabilities Act (ADA) case where Judge Richard Posner contorted himself to uphold insurance policies that capped AIDS-related benefits at $25,000, a level much lower than the million-dollar cap for other health care, even as the insurer conceded that the differential cap had no actuarial grounds. The ADA, a civil rights law with transformative potential, emerged from this case defanged, unable even to prevent insurers from singling out a particular disability for inferior benefits. Many insurance exclusions invoke medical or economic rationales. Because those weren’t available in this case, the Posner opinion cleanly showcases a third judicial maneuver for legitimating discrimination by invoking autonomy of will in contracting. Under this account of contracting, animus is sanitized as mere buyer or seller preference, market preferences are cast as incontestable “givens,” and exclusionary arrangements thus emerge as neutral. This same maneuver underpinned anti-ACA arguments that men should not be forced to purchase insurance containing pregnancy-related benefits. This chapter thus describes a routine maneuver of abstention toward individual hate-based preferences whose malign influence reverberates throughout our health system and beyond.