Today, Constitution Day, is a moment to take stock of the document that has served as the bedrock of our country for more than 220 years and the importance of constitutional interpretation by the Supreme Court for women. This past Supreme Court term was a constitutional blockbuster, dealing with cases from preemption of immigration laws to the right to lie under the First Amendment. Of particular import to women was the decision to uphold the Affordable Care Act.
Most ACA supporters think of the decision in the health care cases as an unmitigated victory for uninsured Americans. However, on a 7-2 basis, the Court found that the ACA’s Medicaid expansion, which required states to expand Medicaid coverage to all adults under 133 percent of the poverty level as a condition of continuing to receive Medicaid funding, was unconstitutionally coercive, because a noncomplying state could lose all of its Medicaid funding. A majority of the Court remedied the violation by holding that the federal government could not condition all of a state’s Medicaid funding on the state’s expansion of eligibility, but only the additional Medicaid funding provided by the ACA. Many Supreme Court watchers posit there will be a wave of follow-up litigation to test the limits of other laws that are, like Medicaid, based on Congress’ authority under the Spending Clause to place conditions on federal funding to states.
Millions of women receive health care through the Medicaid program and will be affected by the choices states make in the wake of the health care cases. But other federal laws based on the Spending Clause are also critically important to women, with Title IX being a prime example. Title IX prohibits sex discrimination in educational programs that receive federal funding, including state educational programs. In the 40 years since its passage, it has had a revolutionary impact on women and girls’ education: it has provided remedies for sexual harassment and bullying, caused girls’ participation in elementary and secondary school sports to skyrocket, and increased opened doors in male-dominated fields like science, math, engineering, and vocational education.
While challenges to Title IX, like other Spending Clause legislation, may well arise in the wake of the health care decision, we are happy to report that they will almost certainly fail. This is because Title IX is different both qualitatively and quantitatively from the Medicaid expansion. Two key differences between Title IX and Medicaid merit highlighting and show why the Court will not strike Title IX down as an improper exercise of Spending Clause power.
First, the health care cases dealt with money on a unique order of magnitude. Medicaid spending is by far the largest federal contribution to state budgets. In fact, Medicaid constitutes “over 20 percent of the average State’s total budget, with federal covering 50 to 83 percent of those costs.” As a result, the Court concluded that the threatened budget loss was “economic dragooning” that left the states with “no real option” but to accede to any conditions that the federal government chose to place on the funds. No other source of federal funds to states approaches the size of Medicaid. For example, states receive only $40 billion annually in federal K-12 funding as opposed to the several hundred billion spent on Medicaid.
Second, Title IX explicitly provides that only the particular program discriminating on the basis of sex risks loss of federal funding. In other words, a state violating Title IX in a particular educational program is not at risk of losing all federal educational funding for the state as a whole, but only the funding going to the discriminatory program. Because the potential budget loss for a state that fails to comply with Title IX in a particular instance is so much less than the budget loss states faced if they refused to accede to the Medicaid expansion, it is very unlikely that Title IX would be found to be unconstitutionally coercive. For these reasons, any Spending Clause challenge to Title IX’s constitutionality should, and almost surely will, fail.
The health care cases, however, are a reminder that it isn’t only constitutional questions regarding the right to privacy or equal protection that are of grave importance to women. Laws like those protecting against sex discrimination can be put at risk in cases addressing the Spending Clause, the Commerce Clause, and other apparently dry constitutional provisions. The continued health and strength of Title IX and other laws critical to women hang on less than a handful of Supreme Court votes. The health care cases are a reminder of the significance of the Constitution, and of judicial nominations, to women.