Emily Martin, Vice President and General Counsel

Emily Martin

Emily Martin is Vice President and General Counsel at the National Women's Law Center, where she undertakes cross-cutting projects addressing women's health, economic security, and education and employment opportunities. She also provides in-house legal advice and representation to the Center. Prior to joining the Center, Ms. Martin served as Deputy Director of the Women's Rights Project at the American Civil Liberties Union, where she spearheaded litigation, policy, and public education initiatives to advance the rights of women and girls, with a particular emphasis on the needs of low-income women and women of color. She also served as a law clerk for Senior Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and Judge T.S. Ellis, III, of the Eastern District of Virginia and previously worked for the Center as a recipient of the Georgetown Women's Law and Public Policy Fellowship. She has served as Vice President and President of the Fair Housing Justice Center, a non-profit organization in New York City. She is a graduate of the University of Virginia and Yale Law School.

Expert in: Issues Before the Courts, Platform for Progress, Treaty on the Rights of Women, Supreme Court, Voter Education, Women & the Constitution, Unemployment, Employment
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My Take

The Supreme Court Questions the Individual Responsibility Provision

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 28, 2012 at 12:46 pm

Given the strength of the precedent supporting the constitutionality of the individual responsibility provision, most legal observers going into the argument yesterday expected the Supreme Court to uphold it. A poll of prior Supreme Court clerks and attorneys who frequently argue before the Court, for example, showed this group of insiders thought it very unlikely that the law would be struck down.  After all, some of the most high-profile conservative Court of Appeals judges in the country have found it to be constitutional. The argument yesterday therefore surprised many. While the Justices’ questions at argument aren’t necessarily a reliable indicator of their ultimate votes, questions by several of the conservative Justices showed both little concern for precedent and little understanding of the impact of the health care law on individuals’ lives.

There’s no question the Commerce Clause of the Constitution gives Congress the power to pass laws regulating commercial markets, including the insurance industry. The Constitution and Supreme Court precedent are also clear that Congress has the authority to craft national solutions to national economic problems. The individual responsibility provision, which requires non-exempt people to maintain insurance (and provides subsidies to low- and moderate-income individuals) or pay a fine, is an integral piece of just such a national solution. Congress designed the individual responsibility provision to work in tandem with the ban on preexisting condition exclusions and the requirement that all insurers must sell health insurance to anyone who wants to purchase it, recognizing that near-universal participation—which the individual responsibility provision and the associated subsidies for purchasing health insurance are meant to achieve—is required for these insurance reforms to succeed. Otherwise, some people would likely forego insurance coverage until they get sick, sharply driving up the costs of insurance for all when they eventually seek care. Because (in constitutional terms) the provision is a “necessary and proper” means for carrying out these reforms of the insurance industry, it should be constitutional under long-established Supreme Court precedent.

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Tags: Affordable Care Act (ACA), Health Care, Health Insurance, Issues Before the Courts, Supreme Court, Supreme Court, Health Care Reform, Health Care & Reproductive Rights, Judges & the Courts | Add new comment

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

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 28, 2012 at 10:31 am

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.

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Tags: Affordable Care Act (ACA), Health Care, Health Insurance, Issues Before the Courts, Medicaid, Supreme Court, Supreme Court, Health Care Reform, Medicaid & Other Public Funding, Health Care & Reproductive Rights, Judges & the Courts | Add new comment

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

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 27, 2012 at 10:55 am

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.

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Tags: Affordable Care Act (ACA), Health Care, Health Insurance, Issues Before the Courts, Supreme Court, Supreme Court, Health Care Reform, Health Care & Reproductive Rights, Judges & the Courts | 1 comment

Decide Now, or Come Back and Do this All Again in a Few Years?

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 26, 2012 at 11:27 am

Today is the first of three days of argument before the Supreme Court on the constitutionality of the health care law. The Court will ease into the case with a discussion not of substance, but timing.

The personal responsibility provision requires individuals (except for those exempt) to have health insurance by 2014 or pay a penalty to the IRS. The Anti-Injunction Act, a nineteenth century law, says that you cannot bring a legal challenge to a tax prior to that tax being paid. So the question up today is whether that law applies to the personal responsibility provision. If so, then the courts don’t have the power to hear the constitutional challenges to the provision until 2015, when the IRS penalties actually come due.

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Tags: Affordable Care Act (ACA), Health Insurance, Issues Before the Courts, Supreme Court, Federal Tax Policy, Supreme Court, Health Care Reform, Health Care & Reproductive Rights, Judges & the Courts | Add new comment

Supreme Court’s FMLA Decision a Setback for Women

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 22, 2012 at 04:26 pm

On Tuesday, by a 5-4 vote, the Supreme Court held that state employees who are denied their Family Medical and Leave Act (FMLA) rights to take time off because of their own serious medical conditions have no meaningful remedy. The facts in Coleman v. Maryland Court of Appeals don’t necessarily suggest that this is a case about sex discrimination and pregnancy discrimination: Daniel Coleman, a man employed by the Maryland Court of Appeals, sought sick leave for a serious medical condition and was terminated—in violation of the FMLA, he claimed. As Justice Ginsburg explained in her powerful dissent, however, whether and how the FMLA protects state employees who need time of because of their own serious medical conditions is in many ways fundamentally an argument about gender and the protections the Constitution provides against sex discrimination. According to five Justices on the Supreme Court, women just lost that argument.

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Tags: Family Medical and Leave Act (FMLA), Issues Before the Courts, Pregnancy, Supreme Court, Supreme Court, Pregnancy, Parenting, and the Workplace, Employment, Judges & the Courts | Add new comment