The ACA Goes to Court

Yesterday, in Richmond, the Fourth Circuit Court of Appeals heard argument in two different cases challenging the constitutionality of the personal responsibility provision of the Affordable Care Act (ACA) – cases in which the National Women's Law Center filed briefs, setting out the particular importance of the Affordable Care Act and the personal responsibility provision for women's health and arguing that the Constitution empowered Congress to pass the ACA to address discrimination and other barriers women face in receiving health care. It is the first such case to be heard by a higher court. While it is impossible to tell exactly how a case will come out based solely on oral argument, the three judges who heard the arguments yesterday appeared skeptical of the arguments that the personal responsibility provision is unconstitutional. Any such skepticism is well founded.

The Constitution gives Congress the power to pass laws regulating interstate commerce. The Supreme Court has long held that this means Congress can regulate individual economic activities and choices that, taken together, have a substantial effect on interstate commerce. This is an important basis for Congress's power to pass antidiscrimination legislation (among many other laws). Congress can forbid discrimination, the Supreme Court has said, because the individual decisions not to allow someone to eat in a restaurant because of her race, or not to hire someone because of her sex, add up and have a significant economic impact not only on the individuals involved, but (taken in the aggregate) on the country as a whole.

Those challenging the ACA as unconstitutional are trying to roll back the ideas on which these decisions rest, as the attorney for Liberty University (one of the challengers) made clear yesterday. He argued that one reason the ACA’s requirement that individuals obtain health insurance was unconstitutional was because Congress hadn’t regulated a "tangible" product – a physical thing. Of course, Congress also wasn't making laws about tangible products when it said that you can't pay a woman less than a man because of her sex or that you can't sexually harass your employees. Under the ACA challengers' vision of the Constitution, Congress could perhaps pass laws about the ways in which you could sell cars or wheat or furniture, but would be unable to address the myriad decisions and actions that have a direct and often much more significant effect on individuals' economic circumstances and, as a result, on the broader national economy.

When individuals are unable to obtain health insurance, the effects on both their health and their finances can be profound. When the uninsured receive health care that they are unable to pay for, the increase in provider costs and insurance costs necessary to make up that loss is borne by everybody. The personal responsibility provision, working together with the new requirement that insurance companies make insurance available to everyone, no matter whether they are male or female, old or young, sick or healthy, seeks to address these economic impacts, while simultaneously forwarding principles of fairness and equality, by ensuring that no one will be locked out of the health insurance market, whether on the basis of sex or otherwise. In this way, it functions like the civil rights laws that seek to ensure that no one will be locked out of a job because of her sex or race, addressing both the economic impact of discrimination and forwarding social justice. The judges who heard the challengers' cases yesterday seemed unwilling to accept that such laws are beyond Congress’s authority because they don't regulate physical objects. We are hopeful that the Fourth Circuit will in fact prove to be unwilling to bring about the revolution in constitutional law that the challengers' arguments would require.