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The Health Care Litigation: What Women Could Lose

For a PDF version of this fact sheet with footnotes, see below.

In 2010, Congress passed the landmark Patient Protection and Affordable Care Act, known as the Affordable Care Act "(ACA)". The ACA is crafted to achieve near-universal health insurance coverage, slow the growth of health care costs and insurance premiums, and end an array of insurance practices that have prevented individuals from obtaining health insurance and health care. One of the ACA's primary goals is to improve women's health and address the discrimination women have faced in the health insurance market — disadvantages and discrimination that often lead women to bear significant costs or go without health care altogether. The law begins to remedy the economic impact of the discrimination that women have long faced in the health insurance market.

Opponents of the law have brought multiple lawsuits, two of which are now before the Supreme Court, claiming that Congress lacked authority to pass the ACA. But it is well-settled that the Constitution allows Congress to make laws addressing national economic problems and to design federal spending programs like Medicaid to assist those in need. The ACA addresses a national breakdown in the health insurance market that has denied coverage to many, limited access to health care, and increased health care costs. The Supreme Court should respect its own well-established precedent and affirm the constitutionality of the ACA.

The ACA Ends Insurer Practices That Hurt Women

Congress's goal in passing the ACA was to address a national economic crisis in health care, with a particular focus on making insurance and health care more accessible and more affordable for women. As Speaker Pelosi stated on the night the House approved the legislation, echoing a National Women's Law Center's campaign, "It's personal for women. After we pass this bill, being a woman will no longer be a preexisting medical condition." For example, the ACA:

Bans pre-existing condition exclusions

Insurers in the individual market have routinely denied coverage for "preexisting conditions" that exclusively or primarily affect women. For example, insurers have deemed women to have a preexisting condition if they previously gave birth by Caesarean section; are pregnant at the time they seek coverage; survived domestic violence and received treatment related to abuse; or received medical treatment after sexual assault. The ACA prohibits this practice and requires insurers to sell insurance to anyone who wants to buy coverage (known as "guaranteed issue").

Bans gender rating

The ACA prohibits insurers' widespread practice of charging women higher premiums than they charge men of the same age, including regularly charging female nonsmokers more than male smokers.

Prohibits sex discrimination

For the first time, the ACA prohibits sex discrimination in federal health
programs, health programs receiving federal dollars, and other programs, including the health insurance exchanges. Insurers receiving federal funds are covered by this provision.

Makes comprehensive health insurance more available and affordable

The ACA subsidizes health insurance to those who lack affordable employer health insurance, which will particularly help women, who on average have lower incomes than men.

Expands Medicaid eligibility

Up to 10.3 million low-income women will be newly covered by Medicaid by 2014.

Guarantees maternity coverage for all

The majority of individual market insurance plans (87 percent in 2009) do not cover maternity care, but under the ACA maternity care is an "essential health benefit" that plans must cover.

Ensures new plans cover recommended preventive care, including contraception, domestic violence screenings, Pap tests, and mammograms, without copayments

The ACA will provide access to important care and life-saving screenings that many women now forego due to cost.

Protects nursing mothers

The ACA requires employers with more than 50 employees to provide breaks and a private place for nursing mothers to express breast milk, thereby making the extensive benefits of breastfeeding more widely available to mothers and children.

Opponents of the law argue that the entire ACA should be struck down. If they are successful, women stand to lose all of this — and more.

In Enacting the ACA, Congress Acted Well Within Its Constitutional Authority

Congress has the authority to require individuals to buy health insurance to remedy a crisis
in health insurance markets.

A primary focus of the constitutional challenges to the ACA is 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. 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 is 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.

There's no question the Commerce Clause of the Constitution gives Congress the power to pass laws regulating commercial markets, including the insurance industry. Those challenging the individual responsibility provision argue that Congress nevertheless cannot require individuals to participate in the insurance market if they choose not to. But antidiscrimination cases show otherwise. As the D.C. Circuit Court stated in upholding the individual responsibility provision, while it "is an encroachment on individual liberty, ...it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race." Over forty years ago, 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.

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 in that market, in reality 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 ACA follows in a tradition of civil rights and women's rights laws squarely within Congress's power.

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 and are more likely to forego preventative care due to cost, to be underinsured, and to report problems paying medical bills. The insurance market's failure to meet women's needs has significant consequences for the larger economy.

The Supreme Court has long affirmed that the Commerce Clause gives Congress authority to address discrimination, because discrimination against women and other disadvantaged groups has a direct impact on how interstate markets operate — for example, 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. That Congress was seeking to promote women's health, remove discriminatory barriers to women's participation in the health insurance market, and address the economic impact of the discrimination enhances its constitutional authority to pass the ACA.

Congress has the authority to expand Medicaid coverage.

In addition, a group of states has argued that it is unconstitutional for Congress to expand Medicaid eligibility under the ACA. While every state participates in Medicaid, no state must do so. Each state can decide either to accept federal funding to operate and design its own Medicaid program within the parameters set by the federal government, turn down that funding and create a totally different program to provide insurance to low-income individuals, or create no program at all. But the states challenging the Medicaid expansion argue that because it is politically difficult to turn down Medicaid funding, the ACA's expansion of Medicaid unconstitutionally coerces the states to spend more on the program. The Supreme Court has time and again held that the Constitution allows Congress to impose conditions on federal funding to states. Such conditions are common, and range from rules about how to operate programs like Medicaid to Title IX's requirement that state universities accepting federal money not discriminate on the basis of sex. If the Medicaid expansion is unconstitutional, many such rules could be at risk.

The ACA and the Supreme Court

So far, four Courts of Appeals have considered the ACA. Two have held that the individual responsibility provision is constitutional, one has held that the individual responsibility provision cannot be challenged until it goes into effect in 2014, and one has held that the provision is unconstitutional. The only Court of Appeals to consider the Medicaid expansion found it constitutional. The Supreme Court will now 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 not only have dire consequences for those whose health and lives depend on the rights and protections provided by the ACA, but could undermine other laws important to women, including antidiscrimination laws.

For more information please visit: http://www.nwlc.org/resource/health-care-law-litigation