Commentary on National Federation of Independent Business v. Sebelius

Abstract

In 2010, Congress passed the Patient Protection and Affordable Care Act and its companion, the Health Care and Education Reconciliation Act (collectively, the Affordable Care Act, ACA, or Obamacare). President Obama signed the ACA into law on March 23, 2010. Within minutes, Florida and twelve more states filed a complaint that would ultimately result in the US Supreme Court’s first “Obamacare” decision: National Federation of Independent Business (NFIB) v. Sebelius. An unexpected 7–2 majority ruled that the ACA’s Medicaid expansion program exceeded Congress’ spending power because requiring states to either expand or lose all Medicaid funding was unconstitutionally coercive. Nevertheless, expansion could continue as an optional program that states could accept or reject without jeopardizing their pre-ACA Medicaid funding.

NFIB can be analyzed—and criticized—through any number of lenses including political philosophy, bioethics, constitutionalism, and more. A more fundamental criticism rests on the pragmatic concern that a majority of the justices have little understanding of—and a surprising lack of curiosity about—the lived experience of many Americans with the complex and fragmented market for health care. This is particularly troubling for women who have more to gain than their male counterparts from a reformed health care system, and more to lose should it falter. As Professor Elizabeth Weeks, writing as Justice Weeks, forcefully reminds us, women are disproportionately lower income, uninsured, and burdened by medical debt. Moreover, discriminatory practices by insurers have long disadvantaged women expressly by gender rating and limiting coverage for maternity care, and implicitly, for example, through preexisting condition exclusions. Thus, in her opinion concurring in part and dissenting in part, Weeks opines, Medicaid expansion and the individual mandate concern more than commerce, taxing and spending; at their core, they protect an individual’s civil rights to coverage and care. Weeks cites works by feminist legal theorists, including Martha Albertson Fineman and Catherine MacKinnon to support her arguments. Her civil rights analysis also evinces her feminist approach.

A remaining question with particular import for women is: What kind of care and coverage do these civil rights protect? Feminist thinking, implicit in the civil rights analysis of Weeks, assists in finding an answer.