By Amy Matsui, Senior Counsel, National Women's Law Center
Cross-posted from NWLC's blog, Womenstake
So we at the National Women’s Law Center are concerned on a number of different levels about Florida federal district court Judge Roger Vinson’s ruling in one of the constitutional challenges to the federal Affordable Care Act (ACA) on Monday. Judge Vinson ruled that the entire ACA must be struck down under the Constitution, from the protections against sex discrimination by insurance companies, to the provisions requiring free mammograms and other preventive services, to the rules stating that nursing mothers must be given breaks to pump.
As a legal matter, we are troubled by the radical interpretation of the Commerce Clause that underlies Judge Vinson’s opinion, and the ramifications that such an approach would have for longstanding legal protections that women and all Americans rely on. As a health policy matter, we are deeply worried about what overturning the ACA would mean for women, who would lose vital protections against discrimination in health care costs and exclusion from coverage based on pre-existing conditions, among other things, while insurance companies would be released from the important consumer protections created by the ACA. And we can’t help but reflect that Judge Vinson’s decision is a stark reminder of why the courts matter for women and their families.
Four different federal trial courts have ruled on challenges to the ACA to date. Two judges (Judge Vinson and Judge Henry E. Hudson in Virginia) have struck down some provisions of the bill; two (Judge Norman K. Moon, also in Virginia, and Judge George C. Steeh in Detroit) have upheld the Act. The first point, I think, is to note the obvious: that the courts have a say in deciding the fate of statutes, like the ACA, that are of tremendous importance to women.(For those of us raised in the 70s, the legislative struggles described in "I’m Just A Bill" stopped when the President signed with a flourish. You have to think that the Bill would have collapsed on the Capitol steps if he had stopped to think about what the courts might do to him.) So it follows that it matters exactly who is filling the lifetime positions on those courts and what constitutional theories they are bringing to their work.
Some have observed that the two judges who have ruled against at least some portions of the ACA were appointed by Republican presidents, while President Clinton, a Democrat, nominated the two who did not. Putting party affiliation aside, the "for" and "against" rulings (taking the different claims into account) reflect vastly divergent approaches to the law, and very different visions of the Constitution. Two have respected the judgments of Congress as a coequal branch of government in concluding that the personal responsibility provision (or individual mandate) was necessary in order to make the ACA’s new consumer protections in the health insurance market work, and thus found the law constitutional. Two have set aside the intent of lawmakers and have crafted a new constitutional theory that allowed them to overturn the consumer protections that placed the interests of individuals over the interests of health insurance companies. That’s why it is so important to be informed about the legal records and the legal views of individuals who have been nominated to our federal courts. For the future of laws like the ACA that matter to women, women should be watching judicial nominees.