Today at the Court: The Justices Consider the Individual Responsibility Provision

Today is the headline day at the Supreme Court in the Affordable Care Act (ACA) cases as the Court considers the constitutionality of the personal responsibility provision. Yesterday, by all accounts, the Justices seemed inclined to hold that they need not wait until 2015 to decide whether this provision is constitutional, which means that the argument today is likely to lead to a decision on the fate of the provision in June.

Women should be watching. The individual responsibility provision, which requires nonexempt individuals to maintain health insurance or pay a fine, and provides subsidies to low- and moderate-income people for this purpose, is closely bound up with the provisions in the ACA banning pre-existing condition exclusions and requiring insurance companies to make coverage available for all. As Speaker Pelosi declared the night the House voted for the legislation, echoing the words of a National Women’s Law Center campaign, “After we pass this bill, being a woman will no longer be a preexisting medical condition.”

Insurers in the individual market have routinely denied coverage for so-called “pre-existing conditions,” such as having given birth by Caesarean section. For example, in 2009, Peggy Robertson of Colorado testified in Congress that because of her previous C-section, an insurer told her that she could only obtain coverage if she were sterilized. Other women have been deemed to have a preexisting condition because they are pregnant or because they are survivors of domestic violence or sexual assault.

The ACA ends these outrageous denials and requires insurers to sell insurance to anyone who wants to buy it. But if the Supreme Court rules the individual responsibility provision to be unconstitutional, these key protections may fall as well.

That’s because these provisions are made possible by the individual responsibility provision. In states that have banned preexisting condition exclusions but haven’t required individuals to maintain insurance, costs of insurance have skyrocketed. When insurance companies cannot deny coverage to anyone, but individuals are not required to get insurance, people who are healthy may decide to forgo insurance until they are sick. They then can purchase insurance just at the moment when the insurer will have to spend most on their care, without having previously paid premiums that would cover some of these costs. In order to make up for these losses, insurance companies must substantially increase premium rates for everyone. When premiums increase, there is even greater incentive for healthy individuals not to purchase insurance, leaving only the truly sick in the insurance pool. This is referred to as a “death spiral.” For this reason, the United States, which is defending the constitutionality of the individual responsibility provision, has told the Court that if it strikes it down, it also has to strike down the ban on preexisting condition exclusions and the requirement that insurance companies make coverage available to everyone.

The stakes are high for women today, as these key measures for ending gender inequities in health care access and health outcomes depend on the individual responsibility provision.