Supreme Court

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 »

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. Read more »

Today, the Supreme Court will begin arguments about the constitutionality of provisions within the Affordable Care Act.

Watch our short video explaining the legal challenges, why we think the law is constitutional, and what women could lose if the law is struck down.

Read more »

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.

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. Read more »

Last week we told you about the House Committee on Oversight hearing that spent three hours addressing why employers should not have to cover birth control – without a single woman on the first panel of witnesses. Representative Darrell Issa, Chairman of the Committee, barred Georgetown Law student Sandra Fluke from the panel.

Chairman Issa questioned Fluke’s experience and he said that, as a student, she wasn’t qualified to testify. Thursday, Sandra responded to that assertion. “I’m an American woman who uses contraceptives,” she said. That’s what makes her qualified.

Well, this week she received the respect she deserved and ears to listen. Sandra made it on to a number of news shows, and on Thursday – a week after being rejected from the initial hearing – she finally got her chance to speak on Capitol Hill. Fluke then explained that since Georgetown University doesn’t cover contraceptives, a friend of hers eventually had to have one of her ovaries surgically removed. Oral contraceptives would have prevented the growth of a cyst the size of a tennis ball, but her friend could not afford the out-of-pocket costs. Read more »

This blog is cross-posted at ACSBlog.

Yesterday, the Supreme Court agreed to hear Fisher v. University of Texas at Austin, a challenge to the affirmative action plan used by the University of Texas at Austin. Currently, the university allocates over 80 percent of its slots to students who graduate in the top ten percent of their public high school. For the final 20 percent, the university considers many factors, including grades, a personal essay, character, special talents, socio-economic circumstances, and race. As the Fifth Circuit Court of Appeals held last year in upholding the constitutionality of the plan, UT-Austin carefully crafted its plan 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.

One of the great promises of public education, at every level, is its potential to create a student body drawn from a wide variety of backgrounds and perspectives, enhancing the educational experience of all students. As the Supreme Court recognized in Grutter, “Numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”

Racial diversity within schools breaks down stereotypes that feed and perpetuate inequality. This is particularly important for women because many of the most poisonous racial stereotypes are also gender stereotypes—for example, that black women are promiscuous, that Asian women are subservient, or that Latina women are domestics. Read more »

For those of you who were raised on Letterman and Super Grover, here is a little post-lunch pick-me-up that counts, in my humble opinion, as light legal research: Read more »

The constitutional challenge to the Affordable Care Act’s expansion of Medicaid poses a fundamental question to the Supreme Court: is a state government less able to exercise free choice in the face of the threat of loss of federal assistance than an impoverished pregnant woman whose health is threatened by the continuation of the pregnancy?

In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment, federal Medicaid funds can not pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law in court, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her right to choose to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.” In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices because, according to the Court, it was her poverty that constrained her choices, rather than any barriers the government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held. Read more »