Judge Amy Coney Barrett says she’d base rulings about health insurance on how “the founders” might have intended. This might make sense if health insurance companies actually existed then. As a former insurance executive, here’s why her approach is laughable when it comes to health care. 

A huge part of the Affordable Care Act (ACA) is the rule that bars insurance companies from dumping Americans with “pre-existing conditions.” Well, in 1787, our founders were not thinking about this. Why? The term didn’t exist yet, and neither did the insurance companies that refuse to cover them. 

My old company, Cigna, started in 1792, but wouldn’t get into health insurance until the 1900s. Ben Franklin was one of the founders – but Ben knew little about health insurance. Why? In his day, the company insured ships and later got into the fire insurance business. 

Another insurer, Aetna, dates back to 1853. But not as a health insurer. Among its first customers were slave owners. Yes, Aetna INSURED SLAVES in its early days. And like Cigna, didn’t get into health insurance until the late 20th century. The founders were long gone, then. 


Even the idea of hospitals was new in the 18th century. And chances are slim that a founder went to one. The first was built in 1751 “to care for the sick, poor & insane who were wandering the streets of Philadelphia.” Unlike us, the founders were not dealing with copays. 

Health insurance wasn’t even a thing when my parents were born in the Tennessee hills. The first health plan dates back to the Great Depression when a hospital administrator in Dallas came up with the idea. It caught on and spread across the nation under the name Blue Cross. 

Unbeknownst to the founders, health insurance would become a huge industry and discriminate against people with pre-existing conditions. It had become common practice after for-profit life, property and casualty insurers (e.g. Cigna, Aetna) got into the business in the 1980s and 1990s. 

It literally took an act of Congress – the Affordable Care Act – to ban that practice. If the Supreme Court strikes the ACA down, those practices would come back in a hurry. And coverage for children and young adults would be lost, as well as prescription drug discounts for seniors. 

The Affordable Care Act didn’t solve every problem. Much more needs to be done. But we’re far better off with it, than without it. And to strike it down because of the writings of someone in the 1700s (when health insurance didn’t even exist) boggles the mind.

The Potter Report is co-published by To Be Fair, Inc. 501(c)3/Tarbell.org and Business Leaders for Health Care Transformation