Yesterday was a very good day for women at the Supreme Court. The constitutionality of the Affordable Care Act, was upheld, and its implementation will now continue. As a result, women will no longer be charged more than men for the same insurance; mammograms, Pap smears, contraception, and a host of other preventive services will be covered by insurance with no co-pay; women will no longer be denied insurance coverage because they are pregnant or have had a cesarean section or survived domestic violence; and millions more women will be covered by Medicaid. There is much to celebrate. But the Court’s decision reveals that there are also important tasks ahead.
First, the Court held that states need not participate in the expansion of Medicaid as a condition of continuing to receive their current Medicaid funding. The ACA expanded Medicaid’s coverage to reach all adults under 133 percent of the poverty level beginning in 2014. (Today the federal government only requires states to cover the disabled, the elderly, children, pregnant women, and parents.) Under the Court’s ruling, states will have the option whether or not to provide that additional coverage. But there is much reason to be optimistic that all or nearly all states will do so. The federal government covers 100 percent of the costs of the Medicaid expansion for the first three years; it is in essence offering the states free money during that time. After that, the federal government’s support will phase down — to only 90 percent of the costs of the expansion. By spending very little of their own money, states can ensure that those uninsured who are the poorest and most vulnerable — those least able to get insurance any other way — will receive health coverage. This should be an easy choice, but there is nevertheless work to be done to ensure that all states do the right thing and fulfill the promise of the ACA.
Second, while the result today was almost wholly good, the Court’s opinion raised questions about how the Constitution will be interpreted in future cases. Five Justices held that the Commerce Clause did not give Congress the authority to impose the individual responsibility provision (also known as the mandate), turning their back on decades of precedent establishing that Congress has the power to craft national solutions to national economic problems. And a majority concluded that it would be unconstitutional at least in some circumstances for Congress to threaten to withhold federal funding for an entire program if a state did not comply with federal requirements to expand a program, placing new restrictions on Congress’s ability to define the scope of federally-funded social programs. We will have further work to do in the courts to ensure that these holdings do not one day threaten important laws and programs on which women depend and to establish that these new constitutional rules will have little relevance outside the context of the ACA.
Third, it is important to recognize that while today was a victory for supporters of the health care law, it was very nearly otherwise. Four Justices — a single vote away from a majority — voted to strike down the Affordable Care Act in its entirety. Not only would the individual responsibility provision and the Medicaid expansion have fallen, so would have hundreds of other provisions, from the protection of breastfeeding mothers’ rights to pump at work, to the prohibition of sex discrimination in federally funded health programs, to the requirement that insurance plans cover maternity care, and many, many more, on the basis of a unprecedented reinterpretation of the Constitution. The decision yesterday demonstrated once more that the make-up of the Supreme Court matters tremendously to women’s interests. It illustrates the stakes of judicial nominations and the need for women to lend their voices to the debates over the federal judiciary.
So today, let’s celebrate. But let’s also recognize the calls to action in the Supreme Court’s decision and respond.