Court Takes Up ACA -- Women's Health Care in Hands of Nine Justices
March 28, 2012
Women have a lot at stake as the Patient Protection and Affordable Care Act (ACA), the most important advance in health care in decades, faces multiple constitutional challenges. The U.S. Supreme Court today wrapped up three days of oral arguments in three separate cases that challenge the federal government's authority to regulate the national health care market. The act will rise or fall depending upon the views of six men and three women justices.
The ACA includes many provisions that specifically benefit women, like contraceptive coverage without cost-sharing, which goes into effect this August, and an important prohibition against gender rating (the practice of charging higher premiums for women without regard to their health history or status), which will take effect in 2014. If the law is struck down, these and other crucial provisions are at risk, including coverage for persons with pre-existing conditions, coverage for children up to age 26, and a large expansion of Medicaid to cover tens of millions of low-income earners (disproportionately women) who do not have employer-based coverage and cannot afford it on their own. Small businesses may also lose government subsidies to provide insurance coverage to their employees.
Three Questions Considered - The court first considered whether the Anti-Injunction Act, which requires actual payment of a tax before it can be contested in court, disqualifies any challenge to the ACA's individual mandate until 2014, when the fine for not having insurance kicks in. Most observers believe the justices will rule this 19th century law inapplicable and proceed to the merits on two lines of attack against the ACA.
The first substantive question is whether Congress had the power under Article I of the U.S. Constitution to require individuals to purchase health insurance. If the individual mandate falls, that will weaken a fundamental objective of the ACA -- to make universal health insurance workable by creating as large an insured pool as possible, so that insurers will not be able to "cherry pick" only the healthiest customers, and consumers will not be afforded the "free ride" of paying no premiums until the moment they need medical care.
The court will also decide whether the act's expansion of Medicaid, which requires states to implement the expansion completely or risk losing all federal Medicaid dollars, violates the Constitution's principle of federalism, which gives states a certain amount of autonomy to enact their own general welfare laws, regulations and policies.
NOW joined numerous allied organizations in an amicus brief supporting the constitutionality of the ACA. We believe that it is fundamentally up to Congress, not unelected jurists, to regulate a national health care market that accounts for one-sixth of the U.S. economy -- and that the power to regulate at the national level is well within the bounds of the Constitution's commerce clause, which gives Congress the power to regulate interstate commerce. Indeed, since most experts agree that the law is constitutional, a contrary decision by the Supreme Court will inevitably bring charges of politically motivated overreach by the court, akin to cases such as Bush v. Gore and Citizens United.
Single-Payer Better - NOW advocated for and continues to support adoption of a single-payer model, such as Medicare for all, to provide affordable and universal coverage. There is little doubt that single-payer would both reduce costs and cover nearly 100 percent of the population. But single-payer may have little chance of passing a Congress where for-profit health care providers and the insurance industry have a great deal of influence. The Patient Protection and Affordable Care Act may be about the best we can get at this time. We are hopeful, however, that more states will follow those like Vermont that have taken steps to enact their own state-based single-payer plans.
Include Abortion Restrictions - NOW was rightfully outraged by the inclusion in the ACA of restrictions on coverage of abortion care, and has submitted testimony to the administration about how to notify women and simplify insurance premium payments for that coverage. One in three women will have an abortion by the age of 45, making that procedure a common and necessary aspect of women's reproductive health care. We will continue to work to amend the law so that it requires coverage of all aspects of women's health care needs.
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