Women have a tremendous stake in the cases before the U.S. Supreme Court challenging the Affordable Care Act. Both the ACA’s particular provisions and the established legal principles they rest on are of critical importance to women. The three days of Supreme Court ACA arguments thus were riveting for women’s health advocates. They were also riveting for those who take seriously decades of precedent permitting the federal government to craft national solutions to national problems. Although statements made during oral arguments are not necessarily an accurate reflection of the justices’ views, many of the arguments made and questions asked are alarming if only because they imply that dramatically new constitutional interpretation with the potential for great harm to women could be under consideration.
Is it illegitimate to require maternity coverage to be covered in all insurance plans? During the argument on the constitutionality of the individual-responsibility provision, Chief Justice John Roberts Jr. suggested that perhaps it was illegitimate to require all insurance policies to cover maternity care. “[T]he policies that you’re requiring people to purchase…must contain provision for maternity and newborn care,” Roberts noted. “You’re requiring people who are…never going to need pediatric or maternity services to participate in that market.” Currently, 88 percent of individual market insurance plans do not cover maternity care, but under the ACA maternity care is an “essential health benefit” that plans must cover beginning in 2014 a major advance for women. Roberts’ observation suggested that it might somehow be constitutionally problematic to require individuals to maintain insurance that includes this essential coverage a dangerous and unprecedented notion.
