Many have hailed the passage of the Genetic Information Nondescrimination Act as a major policy advance. And while there are certainly people who will benefit from the protections included in the law, Emory’s Ani B. Satz argues in the Atlanta Journal Constitution that many will also lose out because of it:
The act increases protections only for some medical information, privileging those with genetic conditions over those with nongenetic ones. This necessarily places greater pressure on insurers to use nongenetic medical information to segregate risk. Further, it creates unequal disability protections. GINA protects individuals with genetic conditions from health insurance and employment discrimination even if they have no symptoms of the condition. The Americans with Disabilities Act protects only individuals with symptoms in regard to employment, services and public accommodation.
GINA also creates the perception that genetic testing is unique and not basic health care. This may further limit already restricted coverage of such technologies under public and private health insurance. In addition, heightened protections for genetic testing may discourage insurers from covering such services out of fear that they will open themselves to increased risk of litigation for breaching patient privacy. Further, insurers and employers are likely to lose incentive to provide genetic testing when they are not allowed access to the results, as they are for other diagnostic tests.
Well-intentioned members of Congress were wrongly persuaded that genetic information is a unique form of medical information. Insurers must discriminate in differentiating between risks in order to function as insurers. Whether it is unjust to deny anyone entitlement to basic health care based on randomly chosen risk criteria – genetic or nongenetic – is a separate question from whether insurers should be able to use only nongenetic information for actuarial purposes.