A Hold on Democracy
posted by Frank Pasquale
Though DNA tests could help a lot of people, many are afraid of getting them–and for good reason:
Employers say discrimination is already prohibited in the workplace by the Americans with Disabilities Act and existing laws governing privacy of medical records. But employee rights advocates say nothing in those laws explicitly prevents employers hard-pressed to pay for mounting health care costs from trying to screen out employees they know are more likely to get sick.
Courts have yet to rule on the subject. When the Equal Employment Opportunities Commission sued the Burlington Northern Santa Fe Railway for secretly testing the blood of employees who had filed compensation claims for carpal-tunnel syndrome in an effort to discover a genetic cause for the symptoms, the case was settled out of court in 2002.
Fears about these possibilities have long led Congress to consider a general national ban on genetic discrimination. There is broad bipartisan support for the idea. . . but one man appears to be blocking it.
As the NYT reports,
The Genetic Information Nondiscrimination Act, which passed the House of Representatives by a wide margin last year, would prohibit insurers from using genetic information to deny benefits or raise premiums for both group and individual policies. (It is already illegal to exclude individuals from a group plan because of their genetic profile.) The bill would also bar employers from collecting genetic information or using it to make decisions about hiring, firing or compensation. But it has yet to reach the Senate floor.
Why the holdup? Ask Oklahoma Senator Tom Coburn:
In a Congress that has had trouble passing even the simplest legislation, Sen. Coburn, who proudly wears the nickname “Dr. No,” is a one-man gridlock machine. This year, the senator, who indeed is a medical doctor, single-handedly blocked or slowed more than 90 bills, driving lawmakers on both sides of the aisle to distraction. He blocked a ban on genetic discrimination by health insurers. He thwarted a bill to set up a program to track patients with Lou Gehrig’s disease. Also nixed: an effort to promote safe Internet use by children. . .
What’s really astonishing is that Coburn’s extraordinary power to “hold” bills does not appear to be shared by some colleagues in the majority, like Chris Dodd. Majority Leader Harry “Reid . . . completely disregard[ed] the “hold” placed by Chris Dodd on any [telecom] amnesty bill — simply refusing to honor it, even as he respectfully honors literally scores of “holds” from GOP Senators such as Tom Coburn.”
I’ll have more to say on double standards in the Senate in a bit. But for now, it’s pretty disheartening to contemplate that one of the few doctors to make it into the Senate appears to be derailing a bill that would alleviate thousands of individuals’ anxiety about crucial diagnostic tests.
PS: By the way, some might claim that genetic discrimination has not yet become widespread, and therefore is not a legitimate policy concern:
Insurers say they do not ask prospective customers about genetic test results, or require testing. “It’s an anecdotal fear,” said Mohit M. Ghose, a spokesman for America’s Health Insurance Plans, whose members provide benefits for 200 million Americans. “Our industry is not interested in any way, shape or form in discriminating based on a genetic marker.”
My colleague Gaia Bernstein has indeed concluded that “genetic discrimination is rare and apparently on the decline.” But that empirical “is” does not lead to the conclusion that legislation “ought” to be unnecessary–a point Bernstein makes clear in her work. The public assurances of employers and insurers aren’t enforceable in court. And in a “recent study by the Georgetown University Health Policy Institute. . . ., [in] 7 of 92 underwriting decisions, insurance providers evaluating hypothetical applicants said they would deny coverage, charge more for premiums or exclude certain conditions from coverage based on genetic test results.”
February 24, 2008 at 7:29 am
Posted in: Health Law
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Responses (3)
Maryland Conservatarian - February 24, 2008 at 12:38 pm
thanks for the links – the more I read of Tom Coburn, the more I like him.
Paul Gowder - February 24, 2008 at 1:42 pm
That article says that overcoming a hold requires a supermajority. Is that right? According to this document (a Congressional Research Service guide on how bills get to the floor, distributed by Lugar’s office), a hold is an informal practice (not codified in any Senate rule) where a Senator notifies the majority leader that s/he’ll object to the traditional method of getting a bill to the floor, viz., unanimous consent.
However, the alternative to unanimous consent is a motion to proceed, which requires a simple majority. Of course, that motion can be fillibustered… but does a hold usually signal a fillibuster? And surely Harry Reid can get 60 votes for this?
shg - February 24, 2008 at 5:35 pm
Another great post. Frank, you keep producing some of the best work in the blogosphere. Always interesting and thoughtful. Thank you.
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