What’s At Stake for Women in the Health Care Cases?

The cases challenging the constitutionality of the Affordable Care Act (ACA) are wending their way through the courts, and on Friday the National Women’s Law Center filed a brief in the most recent to reach the Court of Appeals, setting out what’s at stake for women in the debate and why the law’s impact on women strengthens the legal arguments for its constitutionality.

You have probably heard about the primary argument against the ACA that is being made in these cases: opponents of the legislation claim that its personal responsibility provision is unconstitutional. The provision requires all individuals (unless exempt) to obtain health insurance by 2014 and provides subsidies to assist lower-income individuals in obtaining this insurance. The ACA’s defenders argue that Congress’s authority to regulate interstate commerce under the Constitution empowered it to pass the personal responsibility provision, because this provision is key to making the larger reforms of the interstate insurance market work: if you want to require insurers to issue insurance to anyone who seeks it, regardless of pre-existing conditions, without the cost of insurance spiraling out of control as a result, you need to expand the pool of those who are insured and take steps to make sure people buy health insurance when they are healthy. Interesting debate, you might say, but what does this have to do with women?

First, the ACA is a law that had as one of its primary purposes improving women’s health and women’s access to health insurance. When Congress debated banning insurers from denying coverage based on pre-existing conditions, over and over again supporters of the ban pointed to insurers denying coverage to women because they had had a c-section in the past, or had been a victim of domestic violence. The ACA also takes aim at insurer practices of charging women more than men for identical policies based solely on their sex and refusing to extend maternity coverage to women who had to buy insurance on the individual market. For the first time ever, it prohibits sex discrimination in health programs (including health insurance) receiving federal funding or operated by federal agencies. It provides new rights to nursing mothers at work, covers the costs of preventive care like mammograms and Pap tests, and extends Medicaid to millions more women. Because the ACA’s opponents argue that if the personal responsibility provision is unconstitutional, the whole law must be struck down, all of these guarantees are at risk in the current litigation.

Second, not only would the practical impact on women be severe if the ACA is struck down, the ACA’s purpose and effect of addressing barriers women face in obtaining health insurance actually strengthens the argument that the legislation is constitutional. For over forty years, the Supreme Court and lower courts have recognized that civil rights legislation designed to address discrimination and remove obstacles’ to women’s and minorities’ full participation in the national economy is a constitutional exercise of congressional power under the Commerce Clause, because of the significant economic impact that discrimination has both on the individuals immediately affected and on the broader economy. So, for example, the Supreme Court held, Congress could require hotels and motels to rent rooms to African-Americans because of the impact that these denials had on individuals’ ability to travel and to purchase good and services in interstate commerce. For decades, courts have accepted that antidiscrimination legislation, which simultaneously addresses the economic impact of discrimination while forwarding moral and social ideals, is firmly within Congress’s power under the Commerce Clause. This should be the result here as well.

Many of the insurance company practices targeted by the ACA have prevented from women obtaining adequate insurance coverage, and thus women have faced significant obstacles to accessing needed health care goods and services. Studies show that 68 percent of uninsured women, compared to 49 percent of uninsured men, have trouble obtaining needed health care. When women cannot purchase insurance coverage, or when the insurance coverage available to them does not cover basic health care costs such as maternity care or imposes high out-of-pocket costs for preventive care, their health care expenses are significant; for example, 38 percent of women, compared to 29 percent of men, report problems paying medical bills. Finally, to the extent that uninsured or underinsured women are unable to pay for the health care they require, those costs are passed onto third parties through increased health care and health insurance costs. These economic consequences have a real impact on interstate commerce, just like the discrimination in public accommodations and employment long targeted by federal laws. As a result, the Constitution allows Congress to address this impact through the ACA, including the personal responsibility provision, which enables many of the law’s reforms to function effectively.

Multiple courts will be wrestling with these questions in the months ahead. Women should be watching.