Health Law Is ‘Appropriate Exercise’ of Power

The 2010 Patient Protection and Affordable Care Act’s requirement that Americans have health insurance or pay a penalty squares with Congress’ constitutional power to regulate interstate commerce, NASW recently told the U.S. Court of Appeals for the Fourth Circuit.

The appeals court is reviewing a lower district court’s declaration in Commonwealth of Virginia v. Kathleen Sebelius that the law’s insurance mandate is unconstitutional because it requires an otherwise unwilling person to purchase a good or service.

In an amicus brief filed with the appeals court, NASW, along with several women’s rights organizations, pointed out that the question of whether Congress can regulate the insurance industry and health care services has long been settled. The association cited several previous court decisions in support of that statement.

“[O]n numerous previous occasions,” the brief says, “by exercise of its commerce clause power and as part of its efforts to address behavior with broad consequences for the national economy and to remove barriers to full economic participation by women and other disadvantaged groups, Congress has required individuals to engage in private commercial transactions they would otherwise have disdained.”

The Affordable Care Act does more than regulate the commercial relationship between insurance companies and covered individuals, NASW noted. “The act is also a significant piece of civil rights legislation, seeking to address the economic impacts of the disadvantage and discrimination that women face, remove barriers to women’s full participation in the health insurance market, and advance women’s health.”

Invalidating the insurance mandate would frustrate Congress’ goal of removing barriers to women’s participation in the health insurance market, NASW argued.

NASW filed a brief with the same appeals court that made similar arguments about the importance of equity for women’s access to health care in another challenge to the Affordable Care Act. That case is Liberty University v. Geithner.

In related news, NASW and its Indiana Chapter are urging the U.S. Court of Appeals for the Seventh Circuit to reverse a lower court ruling that ignores federal law banning sexual discrimination in school activities.

In Amber Parker v. Indiana High School Athletic Association, the U.S. District Court for the Southern District of Indiana ruled last October that the Indiana High School Athletic Association’s scheduling of boys’ basketball games during “prime time” and girls’ basketball games during less desirable times when fewer spectators could attend did not constitute a violation of Title IX of the 1972 Education Amendments. The court interpreted Title IX as merely affording girls the opportunity to develop athletic skills.

In an amicus brief filed with the Court of Appeals for the Seventh Circuit, NASW noted that the district court “inexplicably ignored” several Title IX violations raised by the plaintiffs.

“The district court’s dismissive treatment of the issue notwithstanding, the opportunity to play before an audience is far from inconsequential,” the brief says. NASW then paraphrases a Ninth Circuit opinion: “To the contrary, it goes directly ‘to encourag[ing] women to participate in sports’ — ‘a central aspect of Title IX’s purpose.’”

The association also asserted that the IHSAA’s scheduling decisions conveyed a strong message of inferiority to the members of the girls’ basketball team and could lead to the development of unhealthy coping mechanisms, such as lowered expectations to rationalize the unfair treatment.

And finally, NASW said the court erred in ignoring evidence showing that “the disparate scheduling decisions at issue in this case place a disproportionate academic burden on girls by forcing them to juggle their schoolwork with midweek games.”

“[S]uch harms are far from negligible,” the brief says, “and in fact are serious, long-lasting, and precisely the type of harms Title IX was enacted to prevent.”

Sherri Morgan, associate counsel to NASW’s Legal Defense Fund, told NASW News: “Through its involvement in this case, NASW continues its legal advocacy on behalf of women and girls to counter the persistent societal message that females’ activities are less valuable than males’.”

The following organizations signed onto the amicus brief, which was spearheaded by the Women’s Sports Foundation: National Organization for Women Foundation; Southwest Women’s Law Center; California Women’s Law Center; Pick Up The Pace; Sargent Shriver National Center on Poverty Law; Legal Voice; The Legal Aid Society — Employment Law Center; Women’s Law Project; and Hadassah, The Women’s Zionist Organization of America.

These and other amicus briefs, including several Title IX cases, filed by the NASW LDF are available on the Amicus Brief Database.