It was hard to miss last week’s big story on the Affordable Care Act: a federal appeals court in Atlanta declared the personal responsibility provision of the health care law to be unconstitutional. Although the decision was unwelcome news to advocates for women’s health, it’s not the final word on the health care law’s constitutionality.
In fact, the Eleventh Circuit’s ruling runs contrary to strong legal precedents supporting the federal government’s ability to protect women and families from harmful insurance practices. (It also directly conflicts with a recent Sixth Circuit decision upholding the personal responsibility provision.) Under the Commerce Clause of the Constitution, Congress has broad powers to tackle national economic problems, including the economic impact of discrimination. The Affordable Care Act – which addresses the breakdown of the national health insurance market and ends insurer practices that discriminate against women – fits squarely within that authority.
The personal responsibility provision targeted in the Eleventh Circuit decision is an important part of the health care law. Without it, the success of many key parts of the entire Affordable Care Act will be at risk, including the law’s important advances for women’s health.
- For example, the health care law stops denials of coverage based on preexisting conditions. In the past, insurers have denied coverage to women due to a previous Caesarean birth, or because they received medical treatment after domestic violence or sexual assault.
- The law also bans gender rating – the insurer practice of charging women more than men for health insurance – and prohibits sex discrimination in covered programs.
- The law establishes guaranteed maternity coverage and protections for nursing mothers.
- And, the law requires that new plans cover recommended preventive care without copayments – including Pap tests, mammograms, and contraceptives.
Fortunately, there is some good news about the Eleventh Circuit opinion: the court rejected a lower court’s ruling striking down the entire Affordable Care Act. Plus, the panel unanimously dismissed the plaintiffs’ contention that the Act’s expansion of the Medicaid program is unconstitutional.
The bad news, of course, is that a two-judge majority held that Congress exceeded its authority under the Commerce Clause in enacting the personal responsibility provision. The majority described the provision as “unprecedented,” and noted that it will impact individuals who do not participate in the health insurance or health care markets. But the majority’s reasoning discounts Supreme Court precedent on Congress’s Commerce Clause powers, and fails to acknowledge how the provision operates as part of the larger Affordable Care Act.
First, as the dissent by Judge Stanley Marcus emphasized, although the majority calls the Act “unprecedented,” a law isn’t necessarily unconstitutional just because it breaks new ground.
Second, the majority, in giving great weight to some individuals’ choice not to participate in the insurance or health care market, fails to address (as Judge Marcus puts it) “economic and practical realities.” As Judge Marcus writes, “Viewed through a more pragmatic and less stilted lens, it is clear that Congress has addressed a substantial economic problem: the uninsured get sick or injured, seek health care services they cannot afford, and shift these unpaid costs onto others.”
Finally, the majority failed to recognize the law’s purpose of ending discriminatory practices in the health insurance market – such as gender rating and sex-discriminatory denials of coverage. As the National Women’s Law Center argued in a friend-of-the-court brief, a long line of Supreme Court precedent affirms Congress’s power to make laws remedying discrimination that impacts interstate commerce.
Of course, the Supreme Court – not the Eleventh Circuit – will make the final determination on the Affordable Care Act. And the Constitution itself and the Court’s precedents clearly support the law’s validity.