Much Ado About Possibly Pretty Little: McCarran-Ferguson Repeal in the Health Care Reform Effort

Since 1945, the McCarran-Ferguson Act' (MFA) has shielded the "business of insurance" from antitrust liability, so long as the challenged conduct is "regulated by State Law" and does not constitute "boycott, coercion, or intimidation."2 This law, like the dozens of other statutory antitrust exemptions that still exist for other industries, has more or less always been controversial, and efforts to repeal it date back more than thirty years. Amid the past year's intense congressional debate over health care reform legislation, a serious repeal effort was once again afoot, and even now it continues. Because they were linked all along to the overall health reform initiative, the repeal bills that have been considered would apply only to carriers in health insurance and medical malpractice insurance (MMI). In addition, depending on events that remain hard to predict, any of them that is adopted may apply to only some of those insurers' conduct.