New Reports Highlight Harm to Women if Supreme Court Strikes Down Health Care Law

Reports Document Harm to Women That Would Result if Supreme Court Strikes Down Affordable Care ActIn Supreme Court arguments last week and in the press, the debate over the Patient Protection & Affordable Care Act (“Affordable Care Act”), which some call “Obamacare,” has centered around legal arguments whether the individual insurance mandate in the law exceeds Congress’ power to regulate commerce under the Commerce Clause of the U.S. Constitution. However, new reports have now focused on the real effects that striking down the law would have on women’s health care.

A new report entitled, Turning to Fairness: Insurance Discrimination Against Women Today and the Affordable Care Act, issued in March, 2012 by the National Women’s Law Center, a non-profit organization, documents the gender discrimination against women that is actually taking place in the health insurance market today, before the Affordable Care Act fully takes effect in 2014.

These abuses against women will be prohibited and rectified by the Affordable Care Act, starting in 2014, but will continue to harm women if the Affordable Care Act were to be stricken in its entirety by the Supreme Court, the report points out.

In addition, government reports and news commentators have now focused for the first time on what it would really mean for women’s health if the Supreme Court strikes down the Affordable Care Act.

Legal and Ideological Arguments Before the Supreme Court

Legal arguments before the Supreme Court about the constitutionality of the individual insurance mandate, and ideological debates about the health care law, up to now have consumed public attention.

The press has covered these legal and ideological arguments, and their potential political ramifications, at length.

Actual Effect of the Supreme Court’s Ruling on Women’s Health Care

Lost in these legalistic arguments before the Supreme Court and ideological and political debates in the media have been the practical — and many would say ethical — concerns about what actually would happen to women’s health care availability and cost, if the Supreme Court were to strike down the Affordable Care Act.

However, women are now pushing back, and more attention is being focused on what striking down the health care law would mean for real women and their health care.

New Report by National Women’s Law Center.

As documented by the National Women’s Law Center (NWLC) in its new report, Turning to Fairness: Insurance Discrimination Against Women Today and the Affordable Care Act, due to a practice of insurance companies called “gender rating,” women in the individual insurance market collectively now pay about $1 Billion per year more than men in the same market for health insurance. And, these disparities cannot be explained by genuine actuarial differences or differences in coverage.

“In states that have not banned the practice [of gender rating], the vast majority, 92%, of best-selling plans gender rate, for example, charging 40-year-old women more than 40-year-old men for coverage. Only 3% of these plans cover maternity services,” the report states. In fact, “Maternity coverage is largely unavailable in the individual market,” the NWLC’s research indicates.

“Even with maternity coverage excluded, nearly a third of plans examined charge 25- and 40-year-old women at least 30% more than men for the same coverage and in some cases, the difference is far greater. For example, one company charged 25-year-old women 85% more than men for the same coverage, again excluding maternity coverage altogether. These differences result in women paying significantly more for health insurance every year than their male counterparts,” the NWLC’s report finds.

“There is such wide variation in differences women are charged both within and across states—even with maternity care excluded—that it is difficult to see how actuarial justifications could explain the difference,” the report concludes.

Under present law, before full implementation of the Affordable Care Act, it is left up to the States to regulate the individual insurance market. As reflected by the following map from the NWLC’s report, only 13 states (those shown below in blue) actually ban the practice of “gender rating” and one state (in gray) limits the practice:

Without the Affordable Care Act, Gender Rating (charging women more for health insurance than men) is permitted in all States except the 13 States in blue.  The Affordable Care Act will color ALL States Blue and eliminate discrimination against women nationwide, unless the Supreme Court strikes it down.

Under the Affordable Care Act these disparities that result in higher insurance premiums for women than for men in 36 states would all be eliminated. Under the Affordable Care Act, the above map would ALL be colored blue, as the discriminatory practice of “gender rating” would be eliminated in all 50 States.

In addition, similar discrimination against women occurs in the group health insurance market. This results in employers being charged more for health insurance provided to women than for the same health insurance policies provided to men.

“Insurers in the group market use gender rating when deciding how much to charge a group for its health insurance policy. Under this practice, insurers determine premiums based on the number of women a business employs, so that businesses with predominantly female workforces pay significantly more for coverage,” the NWLC’s research documents.

Federal law prevents the employers from charging women more than men for the health insurance they provide to their employees, but without the Affordable Care Act, federal law does not prohibit insurance companies from imposing these discriminatory rates against employers who employ women.

Only 13 States currently prohibit these discriminatory practices in small group markets, and only one State prohibits these practices in all group markets, the NWLC report finds.

“Businesses with a predominately female workforce experience the effects of gender rating most acutely. Women account for the majority of employees in a wide range of industries,” the NWLC points out. “Home health care and child care businesses, for instance, are majority-female (90% and 95%, respectively). More than three-quarters of people employed by hospitals and physician’s offices are women, as are an estimated 81% of the employees in dentists’ offices. Women dominate the workforces of pharmacies and drug stores (66%), retail florists (71%), and community service organizations (70%). Over two-thirds of employees in the nonprofit industry are women,” according to the NWLC report.

All of this discrimination, which adversely affects women and businesses that employ women, will be eliminated under the Affordable Care Act — but, not if the Supreme Court strikes it down in its entirety.

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Government Reports Highlighting Other Health Benefits that Women Will Lose if the Court Strikes Down the Affordable Care Act.

Recent reports by the U.S. Department of Health & Human Services (HHS) and by the White House have pointed out many other health care benefits that the Affordable Care Act provides to women — all of which would be lost if the Act is stricken down. For example:

  • Free Preventive Health Care Services.Over 45 Million women can receive free preventive health care services, with no cost-sharing, under the Affordable Care Act. This includes preventive services such as mammograms, Pap smears and other preventive services. Such free preventive services are now available to 20.4 million women with private health insurance and 24.7 million women with Medicare, under the Affordable Care Act. These preventive services, without cost-sharing, would all be lost if the Supreme Court strikes down the entire Affordable Care Act.
  • Prescription Drug Cost Savings.Seniors and those with disabilities on Medicare, men and women, already have saved over $3.2 Billion (an average saving of about $635 per person) on prescription drugs under the Affordable Care Act. These savings would be taken away if the law is stricken down.
  • Insurance Coverage for Young Adults. Young Adults, men and women, can remain insured up to 26 years of age under their parents’ policies because of the Affordable Care Act. This has already covered 2.5 young people with insurance that would be taken away, if the law were stricken down.
  • Restraints on Premium Rate Increases by Insurance Companies.Insurance companies can no longer raise premium rates above 10% without justification under the Affordable Care Act. A Progress Report released by HHS on March 22, 2012 showed that this has already resulted in a decline in premium rate increases because of the law. All of this would be reversed if the Affordable Care Act is stricken down — meaning that insurance companies would once again be completely free to raise premiums by double digits without reason, as they did routinely before the Affordable Care Act was passed.
  • Ending Lifetime Dollar Caps in Coverage under Insurance Policies. The Affordable Care Act has eliminated lifetime dollar limits on coverage for over 105 million Americans, so that they no longer have to live with the fear that if an illness strikes, they could max out their health coverage, HHS reported. This too would be lost if the Affordable Care Act is stricken down.
  • Stopping Denials of Coverage for “Pre-Existing Conditions.” Perhaps most importantly, starting in 2014 the Affordable Care Act will prohibit insurance companies from denying coverage to anyone, man or woman, because of a so-called “pre-existing condition.” And, already now, nearly 49,000 people with pre-existing conditions, who were unable to find health insurance before the law, have been able to obtain insurance by enrolling in the Pre-Existing Condition Insurance Plan provided by the Affordable Care Act. In addition, the law already makes it illegal for insurance companies to deny children under 19 coverage because of a pre-existing condition.

All these protections would be lost if the Supreme Court strikes down the Affordable Care Act, and women — and men — would once again be returned to the “Wild West” environment that prevailed before the Affordable Care Act was passed. Stricking down the Affordable Care Act would mean that insurance companies would again be free to deny coverage to anyone who is sick, has a pre-existing condition, or exceeds artificial dollar caps of coverage set in insurance policies. Insurance companies would be free to continue raising premium costs without regulation, charge women more than men, charge for all preventive services or deny coverage for them, and otherwise restrict coverage and raise costs for women and men.

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Reports by News Commentators on the Effects that Striking Affordable Care Act Would Have on Women

Ed Schultz, a commentator on MSNBC, in his show broadcast on March 27, addressed the question of what it would mean for women’s health care if the Affordable Care Act is stricken down by the Supreme Court.

Here is Ed’s report. It is important that all women watch this report. (Please wait through the commercial and endure the Rush Limbaugh blurb to get to the main report):

More Information

See related HelpingYouCare™ reports on:

Health Reform Law (Obamacare) Provides 45 Million Women with Preventive Health Care

HHS Notes Successes of Affordable Care Act (Obamacare) on its 2-Year Anniversary

White House Issues New Report on Benefits of Affordable Care Act & Debunks Myths About It

Supreme Court Hears Arguments on Health Care Law March 26-28, 2012

Transcripts of Supreme Court Arguments on Health Care Law Suggest Possible Support for the Law

For more information on the Affordable Care Act and news and information on health care reform and policy, see the HelpingYouCare™ resource pages on VoicesForCare™, including:


Copyright © 2012 Care-Help LLC, publisher of HelpingYouCare™. All rights reserved.

NOTICE: If you are reading this article on any website other than, please click HERE to go to the original article. No website other than HelpingYouCare™ has been given permission to publish this article.

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Footnote: Here is a summary of the legal arguments that have consumed the attention of the Supreme Court and the press:

Legal Arguments in Favor of the Law. In their briefs and in oral arguments before the Supreme Court, the Government, and several of the Supreme Court Justices, noted that Congress specifically found that spreading insurance companies’ risks by requiring most people to purchase health care insurance by 2014 (or pay a penalty) was a necessary part of Congress’ legitimate regulation of commerce in the health care and health care insurance markets to prohibit abuses, such as denials of coverage to sick people based on preexisting conditions, gender discrimination in health care premiums, and other current practices of insurance companies. They point to a long string of legal precedents upholding the broad power of Congress to regulate interstate commerce under the Commerce Clause of the U.S. Constitution.

Legal Arguments Against the Law. During the oral arguments, challengers of the law, and other of the Supreme Court Justices, framed the issue ideologically in terms of “individual liberty” not to buy a product (health insurance) that some claim they don’t want, arguing that those who are not sick and do not want to buy health insurance are not engaged in commerce and therefore should not be regulated, at least until they do choose to consume health care services. They point to the 10th Amendment of the Constitution, which reserves to the States all powers not specifically granted to Congress in the Constitution, and argue that to uphold the Affordable Care Act as a legitimate exercise of Congress’ powers under the Commerce Clause would leave no limiting restrictions on Congress’ power under the Commerce Clause.

Counter-Arguments in Favor of the Law. The Government, and some of the Supreme Court Justices, pointed out that allowing people to wait until they get sick to purchase health insurance could not work actuarially or in practice. They point out that the health care market is unique in that almost everyone will at some point consume health care services but can’t predict when, and that providers are required by law to provide health care even to the uninsured. This results in increasing health care costs and shifting the costs of health care for the uninsured to others, unless these people are required to purchase health insurance in advance. Because of this unique nature of this market, in fact everyone is already involved in the market or affects the price of health care in the market even by their decision not to buy health insurance while healthy.

Proponents of the law further point out that attorneys for the Republican-led states challenging the law have conceded in their briefs to the Supreme Court that Congress does indeed have the undisputed Constitutional power to tax everyone and establish a single-payer health care system, such as Medicare For All. In light of this, they argue that as a policy matter (and even from a Conservative ideological point of view), it makes little sense to strike down the individual insurance mandate, which was a less intrusive means chosen by Congress in order to preserve the role of private insurance companies rather than the federal government, in providing health insurance for all.

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Copyright © 2012 Care-Help LLC, publisher of HelpingYouCare™. All rights reserved.

NOTICE: If you are reading this article on any website other than, please click HERE to go to the original article. No website other than HelpingYouCare™ has been given permission to publish this article.


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