Legal challenge to Affordable Care Act threatens women’s reproductive health care

November 9, 2020
Contact: Laura Bailey baileylm@umich.edu

The Affordable Care Act has improved women’s reproductive health care, but a looming legal challenge threatens those gains. On Nov. 10, the Supreme Court is scheduled to hear arguments in California v. Texas, which challenges the constitutionality of the ACA.

Ruth Zielinski, clinical professor of nursing who leads the graduate midwifery program, and Nicholas Bagley, professor of law, discuss how the ACA has impacted reproductive health care and the Supreme Court’s options in deciding the case.

Did the ACA improve reproductive health care for women? If so, how?

Zielinski: The answer is a resounding yes, although in my opinion, the ACA did not go far enough to ensure health care for all. According to the Guttmacher Institute, the proportion of women of reproductive age (15-44) who were uninsured declined from 20% (12.5 million women) in 2013 to 12% (7.7 million) in 2018. In my experience, many women (particularly those in low-paying service industry jobs) were uninsured and had to choose between preventive care such as cervical cancer screening and paying their bills.

Prior to the ACA, many private insurers did not cover maternity care. Maternity care is considered essential under the ACA. In my own practice, this was often the case. For example, a patient who was 17 was not covered for her pregnancy under her father’s insurance and yet did not qualify for Medicaid because she lived with her parents. The ACA required contraceptive coverage, per the Guttmacher Institute: HIV and other STI screening and counseling, cervical cancer screening, HPV vaccination, and breastfeeding support and pumps.

Notably, the ACA’s policies have been linked to improvement in how long women breastfeed their children. In my professional experience, women in lower-paying jobs often chose to not breastfeed because they had to return to work, sometimes as soon as two weeks postpartum (another topic of concern is our lack of paid parental leave) and could not afford expensive breast pumps. Also, for people experiencing intimate partner violence, the ACA has an expedited insurance plan enrollment processes.

Can you explain the case before the Supreme Court?

Bagley: To understand the challengers’ argument, you have to see the mandate as consisting of two discrete parts. There’s an instruction to buy insurance, and there’s a penalty associated with failing to do so.

As part of their 2017 tax reform package, congressional Republicans amended the ACA to eliminate the tax penalty. Because they couldn’t summon a filibuster-proof majority necessary to make substantive amendments, they zeroed the penalty out without also eliminating the naked instruction to buy insurance. Then they trumpeted to anyone who would listen that they repealed the individual mandate—which, for all practical purposes, is precisely what they did.

But that’s not how the challengers see it. In their view, the penalty-free mandate amounts to a coercive exercise of government power. And it’s an unconstitutional exercise of power because, back in 2012, the Supreme Court held that Congress lacks the power to coerce people to buy insurance.

Will dismantling part or all of the ACA hurt women’s reproductive health care? Which provisions are you most concerned about?

Zielinski: Without a doubt. While I am currently most concerned about California v. Texas, and that it will be completely dissolved (particularly given the current state of the Supreme Court), I am very concerned about how the ACA has been chipped away at with respect to access to affordable contraception. For so many patients, affordable contraception is essential to preventing unplanned pregnancy. Currently, oral contraceptives average $20-$50 per month, implants over $800, an IUD over $1,000 and the Depo-Provera shot is $240 per year. Compare that to other countries like Ghana where family planning is accessible and free or nearly free.

Which women will be hurt most if the ACA is dismantled, or is it across-the-board?

Zielinski: We know there is a gender pay gap so women with lower-paying jobs, working part-time, head of single-parent households will be most hurt if the ACA is dismantled.

Without getting too technical, what options does the Supreme Court have?

Bagley: The court can reject the case outright, strike down just the toothless individual mandate or eliminate the whole ACA. If the court does think there’s a constitutional problem with the mandate, however, the right answer is not to invalidate the entire ACA, which is what the challengers want. The right remedy, instead, would be to strike the supposedly coercive instruction from the law. If that’s what the Supreme Court does, fine––no one cares whether a precatory instruction remains on the books or not. It’s the rest of the ACA that matters, and toppling it would constitute breathtaking judicial activism.