We are currently facing a new wave of healthcare mergers in the United States. More and more health insurers, such as Aetna, have started merging with powerful drug suppliers, such as CVS. What do these companies hope to achieve by merging? They want to increase their access to our health data. They want to know our individual biology, our medical history, our level of well-being; they want to know where we go, what we buy, how much we sleep; if we can resist sugar, junk food or nicotine; if we exercise and how often we exercise. In other words, they aim to shape our digital health ID. Why? On one hand, health insurers aim to reduce their risks and therefore their costs by improving our level of well-being. On the other, health insurers aim to reduce their costs by discriminating against us. Indeed, by allowing health insurers to gain access to consumers’ prescription history and health habits, these data driven mergers can create substantial barriers to entry for high-risk consumers who want to enter the health insurance services market. Can the U.S. antitrust enforcers address the harm that these mergers create? Specifically, reduced access to health insurance services for a specific segment of consumers? And, if so, how? This article identifies three potential ways in which the U.S. antitrust enforcers could address the harms that these mergers impose on high-risk consumers. First, the U.S. antitrust enforcers could contend that the vulnerable, high-risk consumers constitute a separate relevant market. Second, they could argue that the proposed merger’s negative impact on high-risk consumers should weigh more heavily than its positive impact on low-risk consumers, notwithstanding that the net effect of the merger should be assessed. Third, the U.S. antitrust enforcers may argue that these mergers facilitate a health insurer’s efforts to violate the Affordable Care Act and should, therefore, be prohibited. Thus, this article is the first to address the need for the U.S. antitrust enforcers and the courts to confront the harm that these data driven mergers pose to high-risk consumers. If not, they risk applying antitrust law in a way that further exacerbates the existing health disparities in the United States.
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