The Picture Begins to Assert Itself:
Rules of Construction for Essential Health Benefits
in Health Insurance Plans Subject to
the Affordable Care Act
Wendy K. Mariner *
Joan Miró described his artistic method as moving from free expression
to more detailed execution: “ I begin painting and as I paint, the picture
begins to assert itself. . . The first stage is free, unconscious. The second
stage is carefully calculated.” 1 Like Miró, the drafters of the Affordable
Care Act (“ACA”)2 might resist being labeled Surrealists, but the product
of their efforts is a large canvas on which a new picture of health insurance
is emerging. In broad strokes, the ACA lays out a vision for financing
access to comprehensive, affordable health care, thus changing the nature of
health insurance. No longer the subject of an ordinary, voluntary
commercial transaction – because almost everyone must obtain some form
of coverage – health insurance is becoming a form of social insurance.3
* Edward R. Utley Professor of Health Law, Boston University School of Public Health,
Professor of Law, School of Law, Professor of Socio-Medical Sciences, School of Medicine.
My thanks to Professors George J. Annas, Leonard H. Glantz, and Jeffrey W. Stempel, and
Michael E. Cannella, Health Law & Bioethics Fellow, BU School of Public Health, for
insightful comments and suggestions. Errors remain my own.
1. Susie Hodge, Why Your Five-Year-Old Could Not Have Done That: Modern Art
Explained 63 (2012) (quoting Miró). My thanks to Professors Stempel and Annas for
inspiring this metaphor.
2. Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat.
3. See Paul Starr, Remedy and Reaction: The Peculiar American Struggle Over Health
Care Reform 241 (2011) (“The Affordable Care Act restructures health insurance so as to
achieve for all Americans the aims it has been serving only for some—to provide access to
health care and protection against the risk of being bankrupted by medical costs.”); Wendy
K. Mariner, Health Insurance Is Dead; Long Live Health Insurance, 40 Am. J.L. & Med.
195, 201 (2014) [hereinafter Mariner, Long Live Health Insurance] (“[T]he ACA cemented a
broader social function for health insurance, employing it to serve the goal of access to
affordable healthcare for all.”). The ACA’s future depends on somewhat unpredictable
political support for some of its elements. See David Nather, Health Care Torch Passed . . .
to Nobody, Politico (Dec. 7, 2014, 8:29 PM), http://www.politico.com/story/2014/12/health-