Case Could Have Devastating Impact on Access to Reproductive Health Care
On November 10, the United States Supreme Court heard argument in a case that could end health care coverage in the middle of a global pandemic for tens of millions of people across the country.
The case, California v. Texas, is a challenge to the landmark Affordable Care Act (ACA) brought by several states, led by Texas, and the Trump administration. In 2017, Congress reduced the ACA’s tax penalty for individuals who do not have health insurance to zero as part of the Tax Cuts and Jobs Act. The law’s challengers argue that eliminating the tax penalty rendered the ACA’s individual mandate provision unconstitutional (because it is no longer an exercise of Congress’s taxing power) and that the rest of the ACA cannot stand without it. In an unusual decision, the Department of Justice declined to defend the government’s own law, and instead sided with the challengers in arguing that the ACA is unconstitutional.
If the law is overturned, it would also erase gains made in improving access to reproductive health care required under the ACA.
The Center for Reproductive Rights joined 81 other organizations, led by the National Women’s Law Center, in filing a “friend-of-the-court” brief in the Supreme Court defending the ACA in this case. The brief urged the Court to uphold the law because Congress did not intend to repeal the law when it eliminated the tax penalty. It tells the Supreme Court that a central purpose of the ACA was to eliminate discriminatory insurance practices that undermined the health and economic security of women and their families. It further explains that Congress recognized the benefits of the ACA’s protections and did not intend to repeal those protections when enacting the Tax Cuts and Jobs Act. The brief illustrates how the ACA improved coverage for women’s health needs, including access to contraception.
In a decision that was stayed from taking effect, a federal district court ruled that the mandate is now unconstitutional and cannot be separated from the rest of the ACA, and that consequently the entirety of the law must be struck down. The U.S. Court of Appeals for the Fifth Circuit affirmed the district court in part, holding that the mandate is unconstitutional. The Fifth Circuit then ordered the case back to the district court for more careful consideration of whether any provisions of the ACA could be severed if the mandate is struck down.
Rather than return to the district court, the U.S. House of Representatives and a group of states defending the ACA, states led by California, asked the Supreme Court to immediately hear the case, and the Court granted their petition. Depending on how the Court rules, none, some, or all of the ACA could be invalidated.
A Supreme Court ruling against the ACA could have a devastating impact on access to reproductive health care.
The passage of the ACA in 2010 was a significant advance in women’s access to reproductive health care. The law guarantees coverage for no-copay preventive services, including well-woman visits, cancer screenings, screening for intimate partner violence, breastfeeding services and supplies, STI screening, and HIV testing. It also requires most private plans to provide insurance coverage for contraception without a copay. Thanks to the ACA, more than 60 million women have access to no-copay contraceptive counseling and services. The law also extended health care coverage, including for reproductive health care, to 20 million people, and prohibited discriminatory insurance practices, such as charging higher premiums based on gender.
Access to maternal health care was critically expanded through the ACA: Prior to the bill’s passage, many individual health plans did not cover maternity care, and many insurance companies treated pregnancy or past pregnancy-related procedures like cesarean sections as pre-existing conditions, which could be used as grounds for denying maternity coverage. The ACA protects the insurance coverage for 133 million Americans with pre-existing conditions and includes maternity care as an essential health benefit that must be part of any qualified health insurance plan.
These gains are all at stake in California v. Texas. If the ACA’s challengers succeed at the Supreme Court, guaranteed coverage for contraception and other preventive services, expanded access to maternal health care, and protections for people with pre-existing conditions could all be wiped out.
The Affordable Care Act faces an uncertain fate at the Supreme Court.
During oral argument, the Court appeared closely divided on whether to uphold the ACA. Chief Justice John Roberts and Justice Brett Kavanaugh each indicated that even if they determine that the individual mandate is unconstitutional, they are likely to leave the rest of the law intact. However, Justice Samuel Alito speculated—without evidence—that some members of Congress may have deliberately rendered the individual mandate unconstitutional in 2017 so that the Court would strike down the rest of the law.
This case was also one of the first heard by Justice Amy Coney Barrett, who was confirmed to the Supreme Court on October 26 after President Trump nominated her to fill the vacancy created by the death of Justice Ruth Bader Ginsburg, who had voted to uphold the ACA in prior cases. The Center for Reproductive Rights opposed Justice Barrett’s confirmation after concluding that her academic writings, court decisions, and public advocacy revealed a legal view and judicial philosophy that undermine fundamental liberty rights, including comments and writings hostile to the ACA. Before her nomination, Justice Barrett repeatedly criticized previous Supreme Court decisions upholding key provisions of the ACA.
As California, the House of Representatives, and their amici (including the Center) all told the Court, there is no credible legal basis for the Court to strike down the ACA. As Justice Sonia Sotomayor recognized, because the 2017 Congress rejected bills repealing the ACA and opted to instead just zero out the penalty for going without insurance, Congress already decided it doesn’t want the rest of the law to fall. Congress refused to inflict the harm that would follow repealing the ACA, so there is no moment for the Court to now impose that harm itself.
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The Supreme Court is expected to issue a ruling in the case before the end of its term in June 2021.
The Supreme Court heard argument in California v. Texas via teleconference because of the COVID-19 pandemic, with the proceedings streamed live. Click here for a replay of the November 10 oral argument.