Author’s note: CAP uses “Black” and “African American” interchangeably throughout many of our products. We chose to capitalize “Black” in order to reflect that we are discussing a group of people and to be consistent with the capitalization of “African American.”
The Texas v. United States health care repeal lawsuit poses a significant risk to the health and economic security of millions of women and their families. On December 18, 2019, a 5th U.S. Circuit Court of Appeals ruling added to the uncertainty around the future of the Affordable Care Act, threatening the benefits and protections that the law affords women, such as access to women’s preventive services and protections against gender discrimination.
Background on the latest health care repeal lawsuit
Texas and 17 other states, with support from the Trump administration, present in this case an argument that legal scholars have labeled “absurd”: They claim that the entire ACA, including the individual coverage mandate, is unconstitutional because Congress reduced to zero the financial penalty for not complying with the mandate. Judge Reed O’Connor, who in 2016 penned a ruling against the ACA’s nondiscrimination provision, the Health Care Rights Law, issued a ruling for the U.S. District Court for the Northern District of Texas finding that the individual mandate was unconstitutional and that the remainder of the law was inseverable from that provision—and thus, the entire ACA must fall.
Once the case reached the U.S. Court of Appeals, the 5th Circuit ruled that the individual mandate was unconstitutional but remanded the case back to the district court to rule on the ACA’s other provisions. With the entire law at stake, the U.S. House of Representatives and a coalition of 21 states led by California have been filling the role that the federal government has abandoned—defending the law of the land—and they have asked the U.S. Supreme Court to quickly take up the case.
While the case travels through the judiciary, the future of the ACA remains uncertain—and this uncertainty could have harmful effects even before a final decision is reached. If the 18 states and the Trump administration achieve through the courts the same ACA repeal that various 2017 bills attempted—despite voters’ objections—women in particular could be affected. However, an adverse ruling in Texas v. United States could go even further than the other disastrous repeal bills; this time, every provision of the ACA is on the line. Here are five ways this case could harm women’s health and economic security.
1. Women could lose insurance coverage
Around 20 million people could lose their health coverage, and women, particularly Black and Latina women, could be among the most affected. The ACA made available financial assistance for private insurance coverage and expanded enrollment in the Medicaid program. Without this assistance, many women would be forced to forgo coverage and would subsequently lose access to necessary and preventive care. Before the ACA, nearly one-quarter of Black women and 36 percent of Latinas were uninsured. Now, fewer Black women and Latinas, as well as young women of all races and ethnicities, report delaying care as a result of costs, while more report having a usual source of care following the enactment of the ACA.
Repeal of the ACA’s Medicaid expansion program in particular would be harmful to women. Due to systemic racism, sexism, and poverty, a disproportionate number of women of color are low income and enrolled in Medicaid coverage. Medicaid provides women enrolled in the program with access to key health care services: It currently covers 50 percent of births in the United States and pays for 75 percent of all public funds spent on family planning services and supplies. Research also shows that Medicaid expansion is associated with lower rates of maternal and infant mortality.
2. Women could again be discriminated against simply for being women
Before the ACA, insurers could legally, and did frequently, charge women more for coverage in the individual market because of their gender, a practice known as gender rating. If the ACA’s prohibition on gender rating were repealed, insurers could reinstate this practice, which cost women $1 billion more than men annually. The court’s decision could also result in the elimination of the Health Care Rights Law, the landmark provision that prohibits discrimination in health care on the basis of sex, race, color, national origin, age, and disability. The passage of the Health Care Rights Law in the ACA marked the first time that a federal prohibition against sex discrimination was applied broadly to health care, barring federal health programs, health centers, insurance companies, and hospitals, among others, from engaging in discriminatory actions.
3. Women with preexisting conditions could again be denied or priced out of coverage
An insurance company in the individual market could charge enrollees more or deny them coverage if it determines that they have a preexisting condition. A Center for American Progress analysis found that nearly 68 million women—more than half of girls and nonelderly women in the country—have preexisting conditions. Before the ACA, women were charged exorbitant prices or outright denied insurance coverage for having been diagnosed with HIV/AIDS, breast cancer, lupus, and eating disorders—and even for being pregnant or having had a cesarean section. A previous CAP analysis of the ACA repeal bill that Sens. Lindsey Graham (R-SC) and Bill Cassidy (R-LA) introduced in 2017 found that a breast cancer patient and a pregnant person could be charged $28,660 and $17,320 more, respectively, on top of standard premiums.
The repeal effort could have a particularly harmful effect on women of color, who are more likely to experience certain chronic conditions. These conditions could lead to higher rates of coverage denials and higher premiums—further compounding existing discrimination and health inequities in the health care system. For instance, African American women are more likely than any other U.S. population to die from breast cancer, and Latinas have higher rates of and mortality from cervical cancer. Without health care coverage, these disparities will not only persist but also worsen.
Relatedly, the court could eliminate the ACA’s prohibition against annual and lifetime limits on benefits, which would allow insurers to require plan enrollees to pay out of pocket for all services after they reach a certain dollar threshold. People with costly illnesses, such as HIV and cancer, could easily exceed these limits, and even those insured could be forced to pay out of pocket for care.
4. Access to birth control and other preventive services would be limited
The U.S. health care system has historically emphasized treatment instead of prevention, and the ACA sought to shift this focus. The law requires most health plans to cover certain preventive services, including defined services for women, with no cost sharing. According to a National Women’s Law Center analysis, 61.4 million women currently have access, with no out-of-pocket costs, to birth control; breastfeeding services and supplies; well-woman visits; and screenings for cervical cancer, HIV, and interpersonal and domestic violence, among other services. With no requirement for insurers to cover these services without cost sharing, women may face increased costs, leading them to lose access to these services.
A Kaiser Family Foundation analysis found that women are indeed more likely than men to forgo health care, including preventive services, due to cost. This disparity could worsen under repeal of the ACA. For example, following the implementation of ACA birth control benefit, women saved more than $1.4 billion in a year in out-of-pocket costs on birth control pills. Without insurance coverage, birth control pills could cost a woman up to $600 per year, and an intrauterine device could cost around $1,000 out of pocket.
5. Women could lose access to maternal health services during a public health crisis
Compared with non-Hispanic white women, Black women are three to four times more likely and Native American women are four times more likely to die from complications related to childbirth. Given that access to maternal health services is critical to addressing this public health crisis, it is troubling that repealing the ACA in its entirety would result in reduced access to maternal and newborn care. The ACA requires individual and small-group health plans to cover certain essential health benefits including but not limited to: maternal health, mental health and substance abuse services, prescription drug coverage, and rehabilitative services. Under an ACA repeal, as many as 13 million people in the individual market could be enrolled in plans without maternity coverage.
Women could also be disproportionately harmed if insurers no longer have to cover other essential health benefits. For example, women are 40 percent more likely to report having experienced mental health conditions, but nearly 40 percent of individual market plans did not cover mental and behavioral health services before the ACA. Women are also more likely than men to use prescription drugs, and this coverage is also at risk.
The health care repeal lawsuit represents a continuation of the Trump administration’s attempt to take away women’s health care. Despite the failure of past ACA repeal bills, the administration continues to undermine the law through administrative actions, including rules that seek to expand junk health plans, roll back the birth control benefit, and gut the Health Care Rights Law. Now, with the health care repeal lawsuit making its way through the judiciary, the courts could with one decision upend the health and economic security that millions of women have gained under the law.
Jamille Fields Allsbrook is the director of women’s health and rights for the Women’s Initiative at the Center for American Progress.