The constitutional fight over the health care law is a fight with high stakes for women’s health and women’s rights. Today, the National Women’s Law Center filed a brief on behalf of 61 women’s organizations and civil rights groups urging the Supreme Court to reject the constitutional challenge to the Affordable Care Act’s individual responsibility provision.
The constitutional fight over the health care law is a fight with high stakes for women’s health and women’s rights. Today, the National Women’s Law Center filed a brief on behalf of 61 women’s organizations and civil rights groups urging the Supreme Court to reject the constitutional challenge to the Affordable Care Act’s individual responsibility provision.
As Speaker Pelosi stated on the night the House approved the legislation, “It’s personal for women. After we pass this bill, being a woman will no longer be a preexisting medical condition.” A primary purpose behind the ACA was improving women’s health and women’s access to insurance, by ending the insurer practice of denying coverage to women who previously had Caesarean section or survived domestic violence; banning insurers from charging women higher premiums than men; prohibiting sex discrimination in federally funded health programs; expanding Medicaid to cover more than 8 million additional low-income women, guaranteeing maternity coverage; providing Pap smears, mammograms, lactation counseling, and family planning without copayments; and more. Those challenging the ACA before the Supreme Court are arguing that the entire law, including all of these provisions so essential to women, should be struck down. The ACA litigation is in many important ways a women’s rights case.
This is true not only because of what women have at stake in the ACA, but also because the precedent on which many of the most important legal advances for women rest is the same precedent that demonstrates the ACA is constitutional. The Supreme Court has long affirmed that the Commerce Clause of the Constitution gives Congress authority to address discrimination, because discrimination against women and other disadvantaged groups has a direct impact on how interstate commercial markets operate—for example, as the Supreme Court has recognized, when hotels, restaurants, and other businesses refuse to serve customers on the basis of race, this discrimination limits the amount of goods and services that businesses sell, limits the ability of people of color to travel and to spend money related to traveling, and otherwise distorts markets.
As Congress recognized in passing the ACA, women in particular face obstacles to access to insurance and health care that result in an acute economic impact. For example, women experience greater difficulties than men in obtaining health care, are more likely to forego preventive care due to cost, are more likely to be underinsured, and are more likely to report problems paying medical bills. The insurance market’s failure to meet women’s needs has significant consequences for the larger economy. That Congress was seeking to remove discriminatory barriers to women’s participation in the health insurance market and address the economic impact of discrimination enhances its constitutional authority to pass the ACA.
The ACA challengers argue that the individual responsibility provision—which requires all individuals (unless exempt) to obtain health insurance by 2014, with subsidies available for millions of low- and moderate-income people—is nevertheless beyond Congress’s Commerce Clause power. They say Congress cannot require individuals to participate in the insurance market if they choose not to. But the civil rights cases in which the Court found that Congress had the authority to require hotel and restaurant owners to serve African-American customers—even if they did not want to—show otherwise. Just as the refusal to rent a hotel room to a person of color is a decision about how and when to participate in the market for lodging, rather than a decision about whether to participate, the choice not to purchase health insurance is not a decision to forego participation in the health care market altogether. Instead, it is an economic choice about how and when to pay for the costs of health care—given that all of us have health care needs at some point in our lives. In fact, health care costs of the uninsured are shouldered by society as a whole, at a cost of billions of dollars per year. Congress has the authority to regulate a choice that has such a direct and substantial economic impact.
The Supreme Court will soon decide whether to respect the decades of precedent supporting the constitutionality of the ACA or rewrite constitutional law. Should the Court hold that the ACA violates the Constitution, it would have severe consequences for the many women whose health depends on the rights and protections provided by the ACA. Perhaps even more disturbingly, this constitutional revision could threaten a host of other laws important to women, including laws forbidding sex discrimination in employment, housing, and lending. The National Women’s Law Center urges the Court to respect precedent and uphold the ACA.