Supreme Court

Today, Constitution Day, is a moment to take stock of the document that has served as the bedrock of our country for more than 220 years and the importance of constitutional interpretation by the Supreme Court for women. This past Supreme Court term was a constitutional blockbuster, dealing with cases from preemption of immigration laws to the right to lie under the First Amendment. Of particular import to women was the decision to uphold the Affordable Care Act.

Most ACA supporters think of the decision in the health care cases as an unmitigated victory for uninsured Americans. However, on a 7-2 basis, the Court found that the ACA’s Medicaid expansion, which required states to expand Medicaid coverage to all adults under 133 percent of the poverty level as a condition of continuing to receive Medicaid funding, was unconstitutionally coercive, because a noncomplying state could lose all of its Medicaid funding. A majority of the Court remedied the violation by holding that the federal government could not condition all of a state’s Medicaid funding on the state’s expansion of eligibility, but only the additional Medicaid funding provided by the ACA. Many Supreme Court watchers posit there will be a wave of follow-up litigation to test the limits of other laws that are, like Medicaid, based on Congress’ authority under the Spending Clause to place conditions on federal funding to states. Read more »

On Monday the National Women’s Law Center and 22 other women’s organizations urged the Supreme Court to affirm the constitutionality of UT-Austin’s race conscious admissions. The Court will hear Fisher v. UT-Austin in early October, considering the constitutionality of race-conscious admissions to forward diversity in higher education for the first time since Justices Roberts and Alito joined the Court. (Justice Kagan is recused from the case, meaning that it will be decided by the remaining eight Justices. If the Justices split 4-4, the decision below, upholding UT-Austin’s admission plan, will stand.)

UT-Austin fills most of its freshman class through its Top Ten Percent Plan, under which the top ten percent of the graduating class every Texas high school is automatically entitled to admission. The remainder of the UT-Austin class is filled based on consideration of individual students’ academic credentials and personal experiences and qualities, including, in some instances, race. As the Fifth Circuit Court of Appeals held last year in upholding the constitutionality of the plan, UT-Austin carefully crafted this process to comply with the Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that consideration of race in public university admissions could properly forward the compelling interest in diversity in education. But those challenging UT-Austin’s consideration of race argue that the Top Ten Percent plan produces sufficient racial diversity at UT-Austin and that the university thus does not have a compelling interest justifying its consideration of race as a factor in filling the remainder of its entering class. Read more »

This Supreme Court Term presented both a significant victory and significant setbacks for women’s rights. The victory, although qualified: the Court’s 5-4 decision upholding the constitutionality of the Affordable Care Act (ACA). Women’s rights advocates and people across the country continue to celebrate this landmark decision upholding a law that offers critical protections for women’s health and economic security. But while it ruled that the law is constitutional, the Court limited the penalties the federal government can impose if a state refuses to participate in the expansion of the Medicaid program set forth in the ACA, meaning that some states may not expand Medicaid. Further, Chief Justice Roberts’ opinion, particularly when read in conjunction with the stinging joint dissent signed by Justices Scalia, Kennedy, Thomas, and Alito, raises questions about the Court’s future Commerce Clause and Spending Clause jurisprudence and may invite further constitutional challenges to important social programs. Read more »

NWLC staffers who didn't head the the Supreme Court Thursday celebrate the ruling in our office

A troupe of NWLC interns travelled to the Supreme Court Thursday morning – the day the big decision was announced. When we got there, it wasn’t difficult to figure out where we belonged. Those congregated in front of the Supreme Court today were as clearly divided as the Justices were in their opinions.

To the left was a group of singing and dancing ACA-supporters chanting: Ho ho, hey hey, Obamacare is gonna stay. To the right, I saw those opposed to the health care law chanting: Hey hey, ho ho, Obamacare has got to go. Yes, that’s right, the two sides were almost singing the same exact song. How poetic, right?

While we waited for the decision, it was clear that there would be winners and losers. And although we were there awaiting the Supreme Court’s decision on the Affordable Care Act, many of the people on the steps seemed to be talking about everything but the health care law and what it actually does. And the way some were talking, it seemed that the real impact of the ACA was completely lost on them. Read more »

Yesterday was a very good day for women at the Supreme Court. The constitutionality of the Affordable Care Act, was upheld, and its implementation will now continue. As a result, women will no longer be charged more than men for the same insurance; mammograms, Pap smears, contraception, and a host of other preventive services will be covered by insurance with no co-pay; women will no longer be denied insurance coverage because they are pregnant or have had a cesarean section or survived domestic violence; and millions more women will be covered by Medicaid. There is much to celebrate. But the Court's decision reveals that there are also important tasks ahead.

First, the Court held that states need not participate in the expansion of Medicaid as a condition of continuing to receive their current Medicaid funding. The ACA expanded Medicaid's coverage to reach all adults under 133 percent of the poverty level beginning in 2014. (Today the federal government only requires states to cover the disabled, the elderly, children, pregnant women, and parents.) Under the Court's ruling, states will have the option whether or not to provide that additional coverage. But there is much reason to be optimistic that all or nearly all states will do so. The federal government covers 100 percent of the costs of the Medicaid expansion for the first three years; it is in essence offering the states free money during that time. After that, the federal government's support will phase down — to only 90 percent of the costs of the expansion. By spending very little of their own money, states can ensure that those uninsured who are the poorest and most vulnerable — those least able to get insurance any other way — will receive health coverage. This should be an easy choice, but there is nevertheless work to be done to ensure that all states do the right thing and fulfill the promise of the ACA.

Second, while the result today was almost wholly good, the Court's opinion raised questions about how the Constitution will be interpreted in future cases. Read more »

Last week, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA), which defines marriage for all purposes under federal law as between one man and one woman, violates the U.S. Constitution. And yesterday, the Ninth Circuit announced that it would not review en banc the panel decision in Perry v. Brown, which held that California's constitutional amendment banning same-sex marriage violates the federal Constitution's Equal Protection Clause. The First Circuit's decision last week paired with the Ninth Circuit's decision not to further review Perry raises the possibility that the Supreme Court may weigh in on questions of marriage equality under the Constitution sooner rather than later.

The First Circuit's decision is the first time a federal court of appeals has held that DOMA is unconstitutional. (The National Women's Law Center joined a friend-of-the-court brief arguing that DOMA violated the Equal Protection Clause.) The First Circuit's ruling was issued in two consolidated cases. In Gill v. Massachusetts, same-sex couples married under state law argued that Section 3 of DOMA violated the Equal Protection Clause by preventing same-sex spouses of federal employees from receiving the same spousal benefits as opposite-sex spouses; and in Massachusetts v. Department of Health and Human Services, the commonwealth of Massachusetts argued that this section of DOMA was invalid under the Tenth Amendment and the Spending Clause because federal funding for specific programs was premised on denying benefits to same-sex married couples. In 2010, a Massachusetts district court had ruled that Section 3 of DOMA was unconstitutional in both cases. Read more »

Last week, the Senate voted to reauthorize the Violence Against Women Act by a bipartisan vote, an important step forward for the many thousands of women who depend on its protections. But before we forget the Senate debate, we should note not only the surprising resistance the bill met there, but also the specific basis Mike Lee (R-Utah) offered for opposing it. Senator Lee, who sits on the Senate Judiciary Committee and whose views on the Constitution are thus particularly influential, implied that VAWA was unconstitutional.

Senator Lee objected to VAWA’s grants to state and local governments. VAWA provides funding for programs operated by courts, law enforcement, state agencies, local governments, and others, in order to address the needs of victims of domestic violence and sexual assault. In general, recipients must apply to receive these funds. Senator Lee asserted that somehow providing this funding to the state and local governments seeking it compromises states’ rights under the Constitution, because violent crime is regulated primarily by the states. “As a matter of constitutional policy,” Senator Lee stated, “Congress should not seek to impose rules and standards as conditions for federal funding in areas where the federal government lacks constitutional authority to regulate directly.” He also protested that “the strings that Congress attaches to federal funding in the VAWA reauthorization restrict each state’s ability to govern itself.”

Senator Lee’s theory of the Constitution seems to forbid Congress from imposing any sort of standards on the money it gives to state and local governments, even when state and local governments have specifically sought the money and voluntarily assumed the conditions that come with it. This is a radical theory that would make it impossible for Congress to fund the VAWA programs that have been so important for improving the criminal justice response to violent crime against women and for creating coordinated community responses to address the needs of those who experience domestic violence, dating violence, stalking, and sexual assault. Read more »

Yesterday’s Blog of Legal Times described a panel discussion, featuring the three current female Supreme Court Justices and retired Justice Sandra Day O’Connor, that was held on Wednesday evening. Read more »

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. Read more »

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. Read more »