See, for example, Frakt, A. B., Pizer, S. D., and Wrobel, M. V., “High-Risk Pools for Uninsurable Individuals: Recent Growth, Future Prospects,” Health Care Financing Review 26, no. 2 (2004): 73-87.Google Scholar

See, for example, Laudicina, S. S., “State Health Risk Pools: Insuring the ‘uninsurable,’” Health Affairs 7, no. 4 (1988): 97-104. See also Hall, J. P. and Moore, J. M., “The Affordable Care Act's Pre-Existing Condition Insurance Plan: Enrollment, Costs, and Lessons for Reform,” Issue Brief (Commonwealth Fund) 24 (2012): 1-13. See also Chollet, D., “Expanding Individual Health Insurance Coverage: Are High-Risk Pools the Answer?” Health Affairs 23 (2002).Google Scholar

See, for example, Hyman, D. A. and Hall, M., “Two Cheers For Employment-Based Health Insurance,” Yale Journal of Health Policy, Law, and Ethics 2, no. 1 (2002): 2-23.Google Scholar

The most recent estimates suggest around 16.2% of Americans purchase private health insurance plans on the individual market. See Barnett, J. C. and Berchick, E. R., “Health Insurance Coverage in the United States: 2016,” U.S. Census Bureau (September 2017), available at <https://www.census.gov/content/dam/Census/library/publications/2017/demo/p60-260.pdf> (last visited July 31, 2018).+(last+visited+July+31,+2018).>Google Scholar

Many of the arguments here, though directed principally at high-risk pools, apply to other mechanisms for fragmenting solidarity in the health insurance market (e.g. association health plans, and short term policies).Google Scholar

Dworkin, R., “Why the Health Care Challenge is Wrong,” NYR Daily, April 2, 2012. Available at <nybooks.com/daily/2012/04/02/why-health-care-challenge-is-wrong/> (last visited July 31, 2018).+(last+visited+July+31,+2018).>Google Scholar

Deborah, D. Stone, “The Struggle for the Soul of Health Insurance,” Journal of Health Politics, Policy, and Law 18, no. 2 (Summer 1993): 287-317, at 290.Google Scholar

Id., at 291.Google Scholar

Or, more precisely, this is the normative ideal. In practice the category of “medical need” is empty. For a useful discussion about the inadequacy of “need” as a criterion for distributing healthcare interventions see: Elhauge, E., “Allocating Health Care Morally,” California Law Review. 82, no. 6 (1994): 1452-1541.Google Scholar

Soul of Health Insurance, supra note 7, at 297Google Scholar

For a comprehensive critique of efficiency views (both pure and qualified) see: Syed, T., “Educational Opportunity as Distributive Equity: The Principle of Proportionate Progress,” UC Berkeley Public Law Research Paper No. 2926142 (October 31, 2016), available at <https://ssrn.com/abstract=2926142> (last visited July 31, 2018).+(last+visited+July+31,+2018).>Google Scholar

Chollet, D., “Expanding Individual Health Insurance Coverage: Are High-Risk Pools the Answer?” Health Affairs 23 (2002): 349-352; Achman, L. and Chollet, D., “Insuring the Uninsurable: An Overview of State High-Risk Health Insurance Pools,” Commonwealth Fund (2001).CrossRefGoogle Scholar

The theory of recognition which I make use of here emerges most clearly in Hegel's social philosophy, though the term is originally from Fichte. Drawing upon Hegel's framework, Axel Honneth has developed a more robust theory of Recognition. See Honneth, A., The Struggle for recognition: The Moral Grammar of Social Conflicts (Cambridge, MA: MIT Press, 1996).Google Scholar

Soul of Health Insurance, supra note 7, at 300-308Google Scholar

“Educational Opportunity as Distributive Equity: The Principle of Proportionate Progress” UC Berkeley Public Law Research Paper No. 2926142 (October 31, 2016): at 4, available at <ssrn.com/abstract=2926142>; Rawls, J., A Theory of Justice, Revised edition (Cambridge, MA: Harvard University Press, 2009). My language and basic framework in this section is drawn from Talha Syed's work. He has proposed the most comprehensive and convincing conceptualization of our underlying normative commitment for matters of distributive justice and the best mechanism for making interpersonal access-cost tradeoffs in line with that principle. The normative commitment is here quoted. The mechanism Syed believes this normative commitment entails is what he calls the “principle of proportionate priority” which, in the context of healthcare, directs us to look at marginal health benefits/sacrifices of potential recipients in proportion to the overall level of health they already enjoy.Google Scholar

For a philosophical defense of the moral irrelevance of unchosen characteristics that create differential needs see Rawls's discussion about the “natural lottery” in: Rawls, J., A Theory of Justice, Revised edition (Harvard University Press, 1999). [Esp. Page 64 & 86-89].Google Scholar

Elhauge, E., “Allocating Health Care Morally,” California Law Review 82, no. 6 (1994): 1452-1541, at 1493Google Scholar

Id., at 1493; Syed, T., “TLR Symposium on Health Law,” Lecture, Tulsa College of Law, November 2013.Google Scholar

Id.Google Scholar

We can roughly categorize the sorts of mechanisms in the literature into the following bins: efficiency (pure or qualified), equalization (pure or qualified), sufficiency, and fairness. For an analytically rigorous discussion about the first three of these approaches and their problematics. See: Syed, , “Principle of Proportionate Progress,” supra note 15. Syed is the creator and sole occupant of the fourth bin.Google Scholar

It might be objected that the separation of the mutual aid scheme into sub-groups — because it uses one's risk-profile, or perhaps because it would be agreed upon by any rational agent — is actually a fair procedure, and since this initial procedure is fair the subsequent comparison of claims to the pooled resource made within the segregated groups is also fair. However, following Syed, I take it that in the context of any mutual aid scheme justice requires that each individual's claim to the pooled resource must be weighed against all other claimants in the scheme. Thus, for each claim that the individual makes a fair procedure must weigh those claims against all other claimants. High-risk pools make an a priori (structural) determination as to which group of patients one's claim to the health intervention will be compared with. In other words, the procedural violation of justice here is a result of making the access-priority determination too early in the process, and in such a way that precludes each claim to be weighed against the claims of all others.Google Scholar

Of course, as I noted above, there are some situations where individual actions and behaviors do alter one's risk profile. For the most part, however, one's risk profile is the result of luck or chance. Often, the arguments supporting the use of high-risk pools significantly overplay individual agency in determining one's risk profile. This political tactic strives to minimize the moral arbitrariness of one's risk profile, so as to justify holding individuals accountable for their differential needs.Google Scholar

The problem here is one inherent to high-risk pools and as such is not alleviated even if we replace the logic of actuarial fairness with the logic of equality. If we create a system wherein the H' s and L's contribute the same amount per person to their resource pools, then the H' s and L' s resource pools will be equal, but the former will have to deal with much greater healthcare needs, ultimately resulting in significant disparities in realized health levels between the two groups.Google Scholar