Day Three at the Supreme Court: A High Stakes Fight on Severability and Medicaid

Today, the Supreme Court will hear argument on two issues, both critically important to women. First, if the individual responsibility provision is struck down as unconstitutional, do other parts of the Affordable Care Act go with it? And second, is the Medicaid expansion in the ACA unconstitutional?

The first issue is a question of what is called “severability.” Some laws have a provision called a severability clause, which says that if any part of the law is deemed unconstitutional, the rest of the law will remain in force. The ACA doesn’t have a severability clause, and so if any part of it is held unconstitutional, it is up to the Court to decide whether Congress would have intended other parts of the law or all of the law to remain in force in its absence. The government has argued that the individual responsibility provision is constitutional, but that if it is struck down, then the provisions prohibiting insurance companies to make insurance available to anyone who wants it, regardless of preexisting conditions, should be struck down as well. Those challenging the constitutionality of the individual responsibility provision argue that the entire law should be struck down if it is found unconstitutional, including the prohibition on charging women more than men for the same insurance coverage, the provision banning sex discrimination in federally-funded health care programs, the protections for nursing mothers at work, the expansion of Medicaid, the requirement that insurance plans include maternity coverage, the requirement that preventive care like mammograms, Pap smears, and contraceptives be made available without co-pay, and much, much more. An attorney has been appointed by the Supreme Court to make the argument that the parties aren’t making—that if the individual responsibility provision is struck down, no other piece of the law need fall with it. Many court-watchers left the argument yesterday believing that it is possible the personal responsibility provision could be struck down by a 5-4 vote; the question of what would remain if that happens could end up being very important.

The second issue has received relatively little attention in the press leading up to the argument, but is arguably the most important question the Court will hear: whether the expansion of Medicaid eligibility is constitutional. Medicaid, the national health insurance program for low-income people, plays a critical role in providing health coverage for women. Women comprise about three-quarters of the program’s non-elderly adult beneficiaries. More than one in ten women receives coverage through Medicaid, including 21 percent of black Women and 16 percent of Hispanic women. Nevertheless, even women living in extreme poverty are currently unlikely to qualify for Medicaid unless they are also pregnant, parenting, or disabled. Under the ACA, Medicaid will cover up to an additional 8.4 million women by 2014, because eligibility will be expanded to those earning up to 133 percent of the poverty level, or roughly $30,000 a year for a family of four.

A group of states, however, has argued that the expansion of Medicaid violates their rights under the Constitution. While every state participates in Medicaid, no state must do so. Each state can decide either to accept federal funding to operate and design its own Medicaid program within the parameters set by the federal government, or to turn down that funding and create a totally different program, or no program at all, to provide insurance to low-income individuals. But the states challenging the Medicaid expansion argue that because it is politically difficult to turn down Medicaid funding, the ACA’s expansion of Medicaid unconstitutionally coerces the states to spend more on the program.

The Supreme Court has time and again held that the Constitution allows Congress to impose conditions on federal funding to states. Such conditions are common, and range from rules about how to operate programs like Medicaid to Title IX’s requirement that state universities accepting federal money not discriminate on the basis of sex. If the Medicaid expansion is unconstitutional, this will have grave implications for the program that so many rely on for health care. Moreover, such a revolutionary shift in Supreme Court doctrine could place many such rules attaching conditions to federal funding at risk. The stakes are high at the Court today.