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.
• Is the root of the constitutional problem in this case the ACA’s requirement that insurance companies cover those with pre-existing conditions? When Solicitor General Donald Verrilli explained that the ACA’s requirement that insurance companies make insurance available to all — healthy and unhealthy — would lead to skyrocketing premiums in the absence of an individual-responsibility provision, Justice Antonin Scalia in effect shrugged. He said that, to the extent this was a problem Congress faced, it was a “self-created problem”: “You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a condition that is going to require medical treatment, or at least not — not require them to sell it to him at a rate that he sells it to healthy people. But you don’t want to do that.”
Insurers in the individual market have routinely denied coverage for “pre-existing conditions” that exclusively or primarily affect women. For example, insurers have deemed women to have a pre-existing 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. Scalia’s statement suggested that, instead, the Constitution required Congress to leave it undisturbed.
• Does the fact that all states have chosen to participate in Medicaid suggest that Medicaid is unconstitutional? Medicaid plays a critical role in providing health coverage for women. Women comprise about three-quarters of the program’s nonelderly adult beneficiaries, and more than one in 10 women receive coverage through Medicaid. Because of the ACA, millions more will be covered when Medicaid eligibility expands in 2014. Every state participates in Medicaid, and the ACA reflects the assumption that states will continue to voluntarily participate in it. Justice Samuel Alito Jr. suggested that, as a result, the Medicaid program must be unconstitutionally coercive on states: “Congress obviously assumed — it thought it was inconceivable that any State would reject this offer [to participate in Medicaid], because the objective of the Affordable Care Act is to provide near-universal care. And Medicaid is the way to provide care for at least the poorest of the poor.…And when that’s the case, how can that not be coercion?” The test suggested here would cast a shadow of unconstitutionality not only over Medicaid, but over every federal program popular enough to gain universal state participation, from the federal child support enforcement program to Temporary Assistance for Needy Families to the Elementary and Secondary Education Act to federal child welfare programs.
• Will Title IX be a casualty if the Supreme Court guts the ACA’s Medicaid provisions? Justice Ruth Bader Ginsburg asked what the challenge to the Medicaid expansion could mean for Title IX. Just as Medicaid is a federal spending-power program — Congress provides money to the states with the condition that they use that money to create a Medicaid program within parameters set by federal law — so Title IX, which prohibits sex discrimination in federally funded education, is a spending-power rule. States that accept federal money agree not to discriminate in education; if they do discriminate, they may lose that funding.
If it’s coercive to tell a state that it will lose Medicaid funding it has come to depend on if it doesn’t comply with the federal government’s rules about how the Medicaid program should operate, Ginsburg asked, wouldn’t it also be coercive to tell a state university that had come to depend on federal funding that it had to create an athletic program for women to comply with Title IX or risk losing that funding? Paul Clement, the attorney arguing that the Medicaid expansion unconstitutionally coerces the states, said that Title IX “might” be different. “I imagine you might think that” the Constitution allowed Congress to pass Title IX to enforce the equal protection clause, he said to Ginsburg, “and I imagine some of your colleagues might take issue with that.” Hardly a ringing endorsement of the constitutionality of Title IX.
• Does judicial restraint require the Supreme Court to strike down the entire ACA? Justice Anthony Kennedy suggested that if the individual-responsibility provision were unconstitutional, the judicially modest thing to do would be to strike down the entire law and all its apparently unrelated provisions, because “[w]e would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress never intended.…That, it seems to me can be argued at least to be a more extreme exercise of judicial power than…striking the whole.” If the entire ACA were struck down, numerous provisions important to women would be lost, from a ban on charging women more than men for the same insurance, to the prohibition of sex discrimination in federally funded health care programs, to the workplace protections for nursing mothers, to the coverage of mammograms and contraception without co-pays, and much, much more. The idea that all of this should be swept aside to avoid judicial activism is certainly a new concept of judicial restraint.
Marcia Greenberger is co-president of the National Women’s Law Center. The center submitted an amicus brief, representing 60 organizations, on the Affordable Care Act.