Author: Annabel Weinbach

Under the Affordable Care Act (ACA), private health insurers cannot deny a person coverage or charge them a higher premium because of a pre-existing condition or because of their health status. 

Is being unvaccinated for Covid-19 a pre-existing condition? If it isn’t, the unvaccinated could be denied healthcare coverage, but perhaps they should be. 

The health care market is characterized by a significant cost-shifting problem. Right now, healthy, vaccinated individuals are paying the collective cost of the unvaccinated population’s Covid-19 related healthcare. The Covid-19 vaccine has been widely available for almost a year and has proven to be highly effective for preventing costly hospitalization and for mitigating “long-covid” symptoms, which can be very costly. It is so effective that while the unvaccinated population represents only 15% of adults in the U.S., it incurs more than 90% of the nation’s Covid-19-related healthcare costs. It is widely understood that those who remain unvaccinated are far more likely to be hospitalized for Covid-19, and require more specialized – and thus, more expensive – medical care. 

Even before the Covid-19 pandemic, there was a major cost-shifting problem burdening the healthcare system. Before the passage of the ACA, the insured population was essentially carrying the cost of the uninsured. While the ACA’s individual mandate has helped mitigate the issue, another ACA provision poses a new problem in the context of Covid-19. Because insurers cannot deny coverage based on a pre-existing condition, they have been unable to deny coverage to the unvaccinated. 

The unvaccinated population is incurring billions of dollars in healthcare costs, and insurance companies spread these costs evenly among policy-holders, whether they are vaccinated or not. Why should a policyholder who makes the responsible choice to get vaccinated have to pay the price of the unvaccinated patient’s bad decision through higher premiums?

Health insurers in the individual marketplace have interpreted the pre-existing condition provision of the ACA to mean that they can’t impose penalties for not being vaccinated, but some private and public employers have taken the step of penalizing unvaccinated employees to address this cost-shifting problem. 

Delta Airlines, rather than imposing a vaccine mandate, took the usual step of charging unvaccinated employees a $200 monthly penalty, essentially a higher insurance premium, to address the expectation of higher healthcare costs. 

Insurers themselves have also re-instated copays and deductibles for Covid-related costs that were waived at the beginning of the pandemic and before the widespread availability of the vaccine, but these affect both the unvaccinated and vaccinated. 

So long as vaccination status is considered a pre-existing condition for the purposes of health insurance, employer-imposed penalties seem to provide the best path forward for addressing the cost-sharing problem posed by the unvaccinated population’s disproportionately high healthcare costs. 

For the foreseeable future, in the absence of a universal vaccine mandate, a large minority of U.S. citizens will likely remain unvaccinated. As courts across the country impose vaccine requirements for juries — requiring jurors to show proof of vaccination and dismissing them if they do not — we are faced with an important constitutional question. Does requiring vaccines violate the Sixth Amendment right to a trial by a jury of one’s peers? 

The Sixth Amendment explicitly grants criminal defendants the right to a “speedy and public trial, by an impartial jury.” The Supreme Court has ruled, most famously in Taylor v. Louisiana, that an impartial jury is one that is representative of the community, often what they refer to as a representative “cross-section.” Juries that exclude women or racial minorities have failed to pass this “cross-section” test. Today, amid the ongoing Covid-19 pandemic, we are faced with the question of whether excluding the unvaccinated fails the “cross-section” test? In other words, can a jury composed only of vaccinated jurors truly be said to be a “jury of one’s peers?” 

In most communities, the answer is no. Surely in a jurisdiction where there is a near-universal vaccination rate, you could say that a vaccinated jury is representative, but in reality, few if any of these such jurisdictions exist. Even in Marin County, CA, which has one of the highest vaccination rates of any U.S. county, only 90% of eligible residents are fully vaccinated. And the remaining 10% is not a random selection. Just as Covid-19 cases, hospitalizations, and deaths have disproportionately affected low-income people and people of color, these groups are also disproportionately unvaccinated. In most states, the percentage of vaccinated people who are black is lower than the percentage of the population that is black. An analysis of socioeconomic status reveals even more stark distinctions. People with lower income, regardless of race, are far more skeptical of the Covid-19 vaccine and thus have far lower vaccination rates. In addition, there are political considerations. On average, Republicans are far less likely to be vaccinated than Democrats. 

With this recognition of vaccine disparities, it is easy to understand how a vaccinated jury would be an inherently whiter, wealthier, more educated, and more liberal jury than one composed of a random subsection of the population. It is clear then that vaccine mandates for juries violate the “cross-section” test. Vaccinated juries are, generally speaking, not wholly representative of real communities. 

The question then becomes one of how to maintain representative juries while still protecting the health and safety of jurors, judges, attorneys, and others who interact with the judicial system. Some obvious answers may include masks, social distancing, or holding trials virtually. The latter alternative though raises its own complications and questions of access and representation. If only those jurors with internet access were selected, we would see many of the same disparities reflected. Further, if we held in-person trials and dismissed those who felt unsafe sitting on a jury alongside an unvaccinated juror, we might risk the same issue of disproportionate representation in the reverse direction, seeing more unvaccinated, younger, and more politically conservative juries. 

It is rare that something is so clearly unconstitutional, and simultaneously so difficult to address as is this problem. Still, it raises interesting questions about due process and forces an important analysis of both the historic and new racial, socioeconomic, and educational disparities present in our jury pools.