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What do women have to lose if the Affordable Care Act is struck down?

By Matt Reynolds

August 18, 2020, 11:18 am CDT

Jaime Santos, an attorney defending the Affordable Care Act on behalf of several women’s health care groups, knows what it’s like to go without insurance.

In the early 1990s, Santos and her family were uninsured and living on welfare in Demotte, Indiana. Their status came sharply into focus during a Fourth of July parade, when Santos was tumbling with her school gymnastics team. A mylar balloon got caught in a power line, showering sparks onto Santos and her teammates.

As she nursed a burned hand, the city deployed ambulances and medical staff. They gathered everyone up for treatment. Santos decided to run away.

“I remember hiding behind a bush because I knew my family couldn’t afford a hospital visit. I didn’t want any doctors to see me and tell me I should go to the hospital,” she says. “I hid and waited until everyone left and then went and got some ointment and wrapped my hand up.”

A lot has changed in the three decades since Santos and her family got by without health insurance.

In the intervening time, President Barack Obama’s signature health care law—the Affordable Care Act, or “Obamacare”—has extended coverage to more than 20 million people while providing protections for women who previously faced discrimination from insurers and struggled to obtain coverage. The decade-old law has survived two U.S. Supreme Court challenges and dozens of attempts by congressional Republicans to repeal it.

In the coming term, the Supreme Court will hear oral arguments in a third case, California v. Texas, that has once again cast doubt on the future of women’s ability to obtain affordable insurance.

The court will also be considering the case as the coronavirus pandemic pushes the American health care system to its limits. Karyn Schwartz, a senior fellow at the Kaiser Family Foundation, wrote in March that this is a “pivotal moment” and that the law could provide security for Americans as they suffer job losses and salary cuts.

“The health law will provide a safety net that never existed before for those losing job-based health insurance,” Schwartz wrote at the foundation’s website.

A study published in July by the nonpartisan consumer advocacy group Families USA found that 5.4 million people were stripped of insurance between February and May because of job losses.

Santos is a partner with Goodwin Procter in Washington, D.C., and has filed an amicus curiae brief of behalf of the National Women’s Law Center and other women’s health care groups arguing in favor of upholding the ACA at the Supreme Court. The attorney says that the stakes couldn’t be higher, particularly for women of color. In 2017, as Republicans pushed to repeal and replace the ACA, the National Women’s Law Center said that unwinding the law could strip 5.1 million women of color of health coverage they had gained since its enactment

If the plaintiffs in the case prevail, women may no longer be able to afford preventive services, including pap smears and mammograms. They could be denied coverage for being pregnant, which before the ACA was classified as a preexisting condition. Santos fears a return to discriminatory practices that would allow insurers to charge women more for insurance than men.

“If all of the protections of the ACA are wiped away, we will be back to a time in which women pay higher prices for fewer services than men,” Santos says.

Republican-led states are arguing in the consolidated Supreme Court case, California v. Texas, that since President Donald Trump’s 2017 tax cut law reduced the ACA’s penalty for not buying insurance to $0, the individual mandate can no longer be read as a tax and is therefore unconstitutional. They argue further that the entire ACA must be enjoined because the individual mandate is inseverable from it.

Democratic officials challenging the Texas case argue that the law still survives, with or without the mandate. Santos agrees.

“There’s no possible way to read the statutes that we’re talking about and think that Congress would have wanted to do away with every protection that it provided, simply because Congress decreased the mandate to have a zero penalty,” Santos says.

In her brief, Santos wrote that when Congress enacted Trump’s tax cuts, it made clear that it did not intend to change any part of the health care legislation except for the mandate.

“It enacted landmark legislation in part to end health insurance practices that discriminated against women and undermined the health and economic security of women,” Santos wrote.

A lawyer’s story

In her office on the top floor of the historic Monadnock Building in the Chicago Loop, civil rights and employment attorney Julie Herrera has just finished talking on the phone. It’s an overcast day in early March, a little over a week before Illinois Gov. J.B. Pritzker will issue a “stay at home” order in response to the novel coronavirus. Today, 15 stories below, the streets are still bustling.

Herrera, 36, says she supports presidential candidate Bernie Sanders (who will later drop out of the race in April), and his platform of Medicare for All. Now that the Supreme Court has a conservative majority, she is afraid of what might happen.

“My expectation would be that they’re going to do anything they can to get rid of the ACA, to rule against the Obama administration. That’s my fear,” Herrera says.

In 2012, the attorney resigned from a small male-owned firm to go out on her own. She found out “literally the next day” that she was pregnant. Obamacare was in effect, but insurers could still deny coverage for pregnancy, then a preexisting condition. It would be another 15 months before the legislation ended the practice.

“I had already told him I was leaving. The ship had sailed. I was opening my own firm, and I did open my own firm within a matter of days,” Herrera says.

She feared that in nine months she could face a bill of $50,000 or more and scrambled for health insurance on the individual market through the ACA. The attorney was denied coverage. She enrolled in COBRA, an expensive proposition for a young lawyer starting her own firm. The pressure she felt at the prospect of falling behind on her payments and getting kicked off her insurance was immense.

“It was scary knowing that I had to keep COBRA, and there was no other option,” Herrera says.

What’s at stake

More than half of women in the U.S., or more than 67 million, have preexisting conditions, according to the Center for American Progress and the National Partnership for Women and Families. In a 2019 Gallup poll, 29% of women in U.S. households reported having a preexisting condition compared to 21% of men.

Before the ACA, insurers could charge women higher premiums or deny coverage if they had diabetes, an eating disorder or a cesarean birth.

Women also paid higher premiums than men. In her amicus brief, Santos notes that insurers once used “gender rating” to charge women more for insurance coverage than men. In a 2009 study looking at states that had not barred gender rating, the National Women’s Law Center found that 92% of the bestselling plans discriminated against women, charging a 40-year-old woman more than a man of the same age. Of the bestselling plans in 2012 that gender-rated, according to the study, only 3% included maternity coverage in the individual health insurance policy. So maternity coverage isn’t the reason for the extra amount women must pay.

The practice was not confined to the individual insurance market. Insurers demanded higher premiums from businesses depending on how many women they employed, according to Santos’ brief.

Historically, women have paid higher premiums for an array of products, including clothes, makeup and razors. Health care attorney Doug Wolfe, founding partner of the Miami firm Wolfe | Pincavage, analogizes higher insurance costs to a “pink tax.”

“If the Affordable Care Act were to be struck down, it would increase the ‘pink tax’ rate,” he says.

Kathleen Boergers is a supervising deputy attorney general at the California Attorney General’s Office and part of the legal team that is fighting to uphold the Affordable Care Act at the Supreme Court. Pre-ACA, she says women would skip appointments for prenatal care because they either didn’t have coverage or had to pay out of pocket.

“What you end up with is poor outcomes, which is not only devastating for those families but increases the burden on everyone. Because when you have more difficult pregnancies, when you have more difficult labor and deliveries, and then newborns who are sicker, all of that increases the cost to society,” Boergers says.

Women of color will feel a loss at the Supreme Court more acutely than white women. Black women are more likely to die of breast cancer. They are also three to four times more likely to die from complications during a pregnancy, according to the Centers for Disease Control and Prevention.

Kathy Waligora, of the health care advocacy organization EverThrive Illinois, says that if the ACA is overturned, women of color would face more denials and higher premiums than white women.

“It would be particularly harmful for women—and particularly for women of color—who have benefited in so many ways in terms of gaining access to coverage, in terms of protections against discrimination, and the consumer protections and benefits the Affordable Care Act has guaranteed,” Waligora says.

The legislation made preventive services cheaper and easier to access by requiring insurers to cover the costs and by doing away with cost-sharing for the services. Screenings for gestational diabetes, HPV, HIV, and domestic violence are included, as are Food and Drug Administration-approved methods of contraception and breastfeeding support services.

Herrera says she often thinks about what would happen to her female clients if the law is overturned. She notes that the ability of many women to be economically secure and independent is tied to health care costs. Many women depend on health insurance through an employer.

“They stay in those jobs, despite discrimination and harassment and bad conditions and everything else,” Herrera says.

Of course, the law has many detractors. Hadley Heath Manning of the conservative Independent Women’s Forum says that what women have gained is offset by higher premiums and deductibles. She cites Obama’s empty promise that if Americans liked their health care plans that they could keep them, noting that many women were forced off plans they wanted.

Attorney Robert Henneke of the Texas Policy Foundation says that costs under Obamacare are too much of a burden for the Hurleys, the family who are plaintiffs in California v. Texas. Under their ACA bronze plan, Henneke says that the family has to pay $1,200 a month and has a $12,000-a-year deductible.

People who purchase catastrophic insurance plans cover all their out-of-pocket medical costs until they reach a high deductible (capped at $8,150 for an individual or $16,300 for a family under the ACA). Henneke says that kind of coverage, along with access to a network of direct primary care doctors, would be adequate. That would cut the Hurley’s health care costs in half, he says, and the family could also contribute to a tax-free health savings plan.

“I think women would have great autonomy under this kind of model because now, rather than being under the limitations of a plan, they can directly connect with a provider that also fits their preferences,” Henneke says.

Even the law’s cheerleaders agree that it can be improved or even replaced. Santos says that premiums and deductibles are too high for women, particularly middle-income women. That’s because people with incomes that are 400% above the federal poverty line cannot take advantage of subsidies when purchasing health insurance.

Maura Calsyn, managing director of health policy for the Center for American Progress, agrees that lawmakers should improve the existing law, expanding Medicaid coverage and providing more people with tax credits and discounts.

“The solution is to build on it and keep the framework there. A politically motivated lawsuit that completely takes down the entire law is the exact opposite of building on the ACA and would wreak havoc and cause complete chaos in the health care system,” Calsyn says.

If the ACA is struck down, lawmakers could respond by passing their own laws. Since Texas sued over the landmark legislation, at least 13 states have introduced bills to preserve it, according to the New York City-based health care foundation the Commonwealth Fund.

“I think that you’re going to see more liberal and more progressive states will have more robust protections, and I think that you’ll see more conservative states with leaner laws,” Wolfe says.

When Herrera was pregnant with her first child, the attorney found out she had a rare condition among pregnant women—HELLP syndrome, named for its characteristic hemolysis, elevated liver enzymes and low platelet count. She says that the syndrome almost killed her. She is sure insurers would have classified it as a preexisting condition.

“Would I even have been able to have baby No. 2? I don’t know that I would have. I might have just seen it as way too expensive to even consider,” she says.

Instead, the lawyer says that the ACA allowed her to provide health insurance for her and her family, for her associate and for her three employees.

“The difference that it made for me was just in terms of cost, being able to have a small female-owned law firm. Keeping health insurance costs down has allowed me to stay in business and be profitable,” Herrera says.

The lawyer says she would like to see a Medicare for All system in the United States that progressive Democrats have proposed. She describes Obamacare as a “decent Band-Aid for now.”

“It’s not that I think the ACA is failing women. I think that our health insurance situation in the U.S. fails all of us, and particularly women,” Herrera says. “I’m happy that it exists. It’s better than what we had. It’s still not good enough.”