Tag Archives: Supreme Court

The United States Supreme Court has weighed in: The Affordable Care Act is here to stay.

By Women’s Law Project

The Affordable Care Act (ACA), signed into law by President Obama in March 2010, expands health insurance coverage to more than 30 million people, prevents insurance companies from discriminating against people with pre-existing conditions, and ends abusive insurance practices.  On June 28, 2012, the Supreme Court upheld the law, finding that the individual mandate (which is the requirement that everyone carry insurance or pay a fine) is constitutional under Congress’ taxing power.  The Court also upheld the Medicaid expansion provision (which expands Medicaid eligibility for residents to 133 percent of the federal poverty level) as long as states that refuse to comply do not lose all of their Medicaid funding.

While some provisions of the ACA have already gone into effect, other provisions will be in effect by 2014.  This law will improve the lives of women and children across the country, allowing them to access affordable health care.  The ACA benefits women in many ways, including by preventing insurers from using pregnancy, domestic violence, and sexual violence as a basis for denying women coverage (pre-existing conditions), prohibiting the practice of charging women higher insurance premiums than men for the same insurance (known as gender rating), guaranteeing maternity coverage, and ensuring that new insurance plans cover preventive services such as mammograms and pap smears. 

The ACA is constitutional and vitally important to improving the health of American citizens, particularly women.  However, gaps in coverage for health care essential to women remain.  Most notably, the ACA allows insurers to discriminate against women by refusing to cover abortion care, and the Pennsylvania legislature is considering legislation that will ensure that insurance plans sold through the ACA’s state exchanges do not include abortion coverage except in cases of life endangerment, rape, or incest.  Furthermore, the Supreme Court’s determination that states may decline to comply with the Medicaid expansion program without risking loss of their existing Medicaid funding raises questions about whether the federal government will be able to implement the expansion effectively.  If states decline participation in Medicaid expansion, many poor individuals, many of whom are women, will be left without health coverage.  Now the focus is on Pennsylvania to ensure coverage for everyone.

For more information on the ACA and WLP’s work on access to health care, see WLP Health Care Reform and WLP’s Report, Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women.

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Filed under Government, Health Care, Health insurance, Maternity Coverage, Supreme Court, Women's health

White House Holds Town Hall on Women’s Health

Molly Cohen, WLP Intern

With the Supreme Court’s ruling on the 2010 Affordable Care Act looming on the horizon, the White House recently held a town hall meeting on Women’s Health to tout the benefits of the Act. Panel members included Valerie Jarrett (Senior Advisor to the President and Chair of the White House Council on Women and Girls), Kathleen Sebelius (Secretary of Health and Human Services), Judy Waxman (Vice President of the National Women’s Law Center), Mayra Alvarez (Director of Public Health Policy in the Office of Health Reform, HHS), and other female leaders in Washington. The White House promoted the event as “an interactive, open dialogue about how the health care law, the Affordable Care Act, is improving the health of women and their families” and encouraged viewers to submit questions via Twitter and Facebook.

Secretary Sebelius spoke frankly about the discrimination women experience throughout the healthcare system. As our recent report, Through the Lens of EQUALITY: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women also illustrates, women are regularly denied coverage if they have ever had breast cancer, cervical cancer, a cesarean section, or medical treatment for injuries resulting from domestic violence or sexual assault.

Those who do qualify for coverage are subject to a practice known as “gender rating,” in which women pay substantially higher premiums than men of the same age. In fact, a Pennsylvania study found that some insurance companies charge higher premiums to non-smoking women than male smokers of the same age. At the White House town hall, Sebelius remarked, “Now let’s say you were lucky and healthy. Even then, insurers could charge women up to fifty percent more than men just for being a woman. Essentially, this meant that being a woman was, in itself, a pre-existing condition.”

The ACA, if fully implemented, will make gender rating and the practice of withholding coverage on the basis of a preexisting condition illegal in the individual and small group markets. The Act also greatly expands the range of preventive care covered by insurance. Section 1001, for example, requires new health insurance plans to offer all screenings and services recommended by the U.S. Preventive Services Task Force, free of charge to the patient. This includes regular mammograms for women over 40 and screenings for cervical cancer. Section 1302 includes maternal and newborn care in the list of “essential health benefits” new policies must cover, beginning January 2014. Women will no longer have to pay co-pays on prenatal visits, folic acid supplements, consultations with lactation specialists, or screenings for conditions such as gestational diabetes and anemia.

Secretary Sebelius explained that by making preventative care measures more affordable, the ACA seeks to eradicate existing inequalities. Currently, African American women are more likely to die of breast cancer than any other group, while Latinas have the highest rates of cervical cancer.  Under the current healthcare system, low-income women, especially those without insurance, are forced to delay seeking medical care because of the financial burden of doctors’ visits. They are therefore more likely to receive inadequate care and to die prematurely.

While a recent report found that the number of uninsured young Americans is on the decline, any progress made under the ACA is shadowed by the uncertainty surrounding the upcoming Supreme Court decision. If the White House’s worst-case scenario is realized and the Court strikes down the ACA in its entirety? Sebelius warned this outcome would have a “pretty cataclysmic impact.” In a blog issued after the town hall on Women’s Health, she stated:

“…for women, the law means peace of mind. Peace of mind that no matter their circumstance there will be a health system that works for them and cares about their needs. That’s what the law is all about.”

If you want to know more about the link between sex bias and adverse health effects in women, please read our new report Through the Lens of EQUALITY: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women. The Affordable Care Act is an important step for women in Pennsylvania and throughout the country.

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Filed under Health Care, Health insurance, Maternity Coverage, Supreme Court, Women's health

Health Law Litigation Could Compromise Women’s Health

Last month, the United States Supreme Court agreed to hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (ACA), which President Obama signed into law in 2010 with the purpose of improving Americans’ access to health care.  Legal challenges have focused primarily on the ACA’s individual mandate, which requires that most residents purchase qualified health plans or pay a fine, and the Medicaid expansion program, which expands Medicaid eligibility for residents to 133 percent of the federal poverty level. 

Lower courts have split on whether the ACA is constitutional.  See, e.g., Seven-Sky v. Holder, 2011 U.S. App. LEXIS 22566 (D.C. Cir. Nov. 8, 2011) (upholding the constitutionality of the ACA); Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011) (upholding the constitutionality of the ACA); But see Florida v. Dep’t of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (holding that the Medicaid expansion program is constitutional because it is not unduly coercive, but striking down the individual mandate by finding it exceeds Congress’ authority under the Commerce Clause). 

The Supreme Court will review four questions related to the constitutionality of the ACA: (1) whether the Anti-Injunction Act prevents lawsuits from challenging the individual mandate right now (if so, then the legal challenges cannot be in court until after the individual mandate goes into effect); (2) if the Anti-Injunction Act does not apply, is the individual mandate provision constitutional; (3) if the individual mandate is unconstitutional, can the rest of the ACA remain in effect without it; and (4) whether the ACA’s Medicaid expansion program is unconstitutional?

The Women’s Law Project believes that the ACA is a constitutional exercise of Congress’ broad powers under the Commerce and Spending Clauses of the United States Constitution.  See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); New York v. United States, 505 U.S. 144 (1992).  The decision not to purchase health insurance is an economic activity subject to congressional regulation under the Commerce Clause because, over time, those uninsured individuals will impose costs on taxpayers and others when they inevitably utilize healthcare during the course of their lives.  The Medicaid expansion program is also constitutional because it is a voluntary program that is not too coercive to the states.  Even the 11th Circuit, which invalidated the individual mandate, held that the Medicaid expansion program is constitutional. 

If the Supreme Court invalidates the ACA, the decision will jeopardize the health of millions of Americans.  According to Media Matters, the law has already benefitted 4 million seniors with Medicare, 4 million small businesses, 2 million children, and 1 million young adults. The Herndon Alliance points out that, among other benefits, when the ACA is fully implemented “a child getting sick [would] no longer [be] a reason for a lifetime of denial of care [and] preventive services will give our children and our parents better chances for healthier and longer lives.”

In particular, women will suffer if the ACA is not upheld.  The ACA benefits women in many ways, including by prohibiting insurers from using pregnancy, domestic violence, and sexual violence as “pre-existing conditions” to deny women health coverage, prohibiting the widespread practice of charging women higher insurance premiums than men for the same insurance (known as gender rating), guaranteeing maternity coverage, and ensuring new plans cover preventative services such as Pap smears and mammograms.

The ACA is constitutional and vitally important to improving the health of American citizens, particularly women.  The WLP strives to eliminate sex discrimination in insurance and to expand health coverage, and full implementation of the ACA is essential to meeting these goals.  For more information on the ACA and WLP’s work on access to health care, see WLP Health Care Reform.


Filed under Health Care, Health insurance, Supreme Court, Women's health

Divide and Conquer: The Wal-Mart Lawsuits Are Back

Four months after the United States Supreme Court, without ruling on the merits of the sex discrimination case under Title VII of the Civil Rights Act of 1964, told Betty Dukes and her co-plaintiffs that their lawsuit against Wal-Mart could not proceed as a nationwide class action, the plaintiffs have re-organized and are trying again with smaller, regional class actions that may be permitted by the Supreme Court case. 

We blogged about the original class action lawsuit in March, when the Women’s Law Project signed an amicus brief authored by the National Women’s Law Center and the ACLU in support of the plaintiffs.  The class included 1.5 million women who work or have worked for Wal-Mart, women we believe were properly joined together in a single class action because Wal-Mart’s discriminatory decision-making processes affected all of them.  As statistical evidence shows, female Wal-Mart employees in all regions earned less, held lower-paying jobs, and received fewer promotions than men, even though on average they worked longer for the company than men. 

In Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court rejected the possibility of a nationwide class action, concluding that the members of the proposed class did not satisfy the requirements of Federal Rule of Civil Procedure 23 (a) of having questions of law or fact in common (“commonality”) and that their claim for backpay did not meet the requirements of Rule 23(b)(2).  By departing from established understandings of “commonality,” transforming it from a “threshold criterion” that is “easily satisfied” into a much harder inquiry to satisfy (see Justice Ginsburg’s dissent), the Supreme Court bent over backwards to make it harder for employees and consumers to challenge big corporations in court.

 Now, the battle is on again as women bring class action suits region by region: a case was filed against Wal-Mart in California federal court on October 27, and another in Texas federal court the next day.  Attorney Joseph Sellers says that we can expect to see an “armada of cases” across the nation in the near future.

By splitting up the nationwide lawsuit into many regional lawsuits, the plaintiffs hope to increase their chances at success by defining smaller classes and adjusting their arguments to conform to the Supreme Court’s anti-employee ruling.  Legal action against Wal-Mart, the nation’s largest private employer and a bastion of gender discrimination, is as necessary today as it was when the plaintiffs originally filed their nationwide class action a decade ago. We continue to support the women as they pursue civil justice region by region.

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Filed under Employment, Equal pay, Equality, Sex Discrimination, Supreme Court

WLP Signs Onto Amicus Brief for Female Walmart Employees

The United States Supreme Court is set to hear a sex discrimination case brought against the largest private employer in the states. Although Walmart v. Dukes began with a small group of female workers, it has since grown into a class action including close to 1.5 million women who work or have worked at Walmart stores, making it the largest class action employment suit in United States history.

Without addressing the merits of the gender discrimination claim, Walmart is challenging the class action status itself. Walmart asserts that the plaintiffs are too diverse to qualify for class action status. If Walmart prevails in its argument, the female employees will have to file lawsuits individually. This would put women at greater risk for retaliation and make it less economically possible for women to pursue claims against Walmart.  Additionally, splitting the claims would potentially lead to many inconsistent rulings and increase judicial expenses, going against the spirit of Rule 23 of the Federal Rules of Civil Procedure, which sets no limit to the number of class action litigants and allows cases to be more efficiently litigated.

The Women’s Law Project has joined in an amicus brief asserting that workplace gender discrimination is properly addressed in this class action and that this class is unified since subjective decision making practices affected all women within the class. The brief highlights evidence of general beliefs that women should not be primary breadwinners and other assumptions of women’s availability and competency which caused women to be devalued in the workplace and restricted promotion opportunities. There was also evidence that the employers were purposely secretive about payment of male counterparts who earned more than the female employees. The Supreme Court is expected to issue its decision on the case in June.

The National Women’s Law Center, which co-authored the brief with the ACLU, is collecting messages of support for the Walmart women. You can add yours here.

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Filed under Employment, Equal pay, Equality

Celebrating the Third Circuit’s Decision in Reedy v. Evanson

Last week’s ruling by the U.S. Court of Appeals for the Third Circuit in Reedy v. Evanson, reviving a Butler County rape survivor’s civil lawsuit against the police officers who wrongly arrested and jailed her for false reporting, was gratifying to women’s advocates for several reasons.

Most importantly, the Court of Appeals showed the face of justice to a young woman who had been viciously attacked not just by her assailant but also by a hostile criminal justice system. The lengthy precedential appellate opinion [PDF] exposed and dismantled the sexist assumptions the police used against her: real victims fight back to the utmost, even with a gun to the head; real victims accept psychological counseling; real victims are polite and compliant even when falsely accused; real victims are so shattered they couldn’t possibly remember the exact time of the rape; real victims don’t use profane slang in describing the obscenities committed upon them. The court ruling almost could have been written by the sexual assault experts who joined the Women’s Law Project’s amicus brief in the case, so impassioned was the opinion and so grounded in the realities of women’s experience. The situational irony here is rich: the victim who wasn’t believed, in part because she didn’t fight hard enough, just smashed her tormentors to smithereens.

But there’s another reason why feminists should be celebrating the Reedy decision, and that is the ruling’s heavy reliance on another Women’s Law Project case, the 2001 U.S. Supreme Court case Crystal Ferguson v. City of Charleston. This case figured prominently in the Reedy Court’s discussion of whether the police defendants violated Ms. Reedy’s Fourth Amendment rights when, in their frenzy to incriminate her for something, they seized her hospital blood test results in a warrantless search for illegal drug use.

Crystal Ferguson was a poor, pregnant, African-American mother with an untreated addiction at a time and place where no accessible treatment for women with children existed. Unfortunately for Ms. Ferguson, the South Carolina public hospital where she got obstetric care had a secret agreement with local police and prosecutors to drug test pregnant patients without their consent and turn the test results over to the police if they tested positive.

Ms. Ferguson gave birth to a healthy baby, and was taken in handcuffs from her hospital bed to jail. The hospital defended its policy—technically, an unconstitutional search and seizure of Ms. Ferguson’s body fluids—by invoking the “special needs” exception to the Fourth Amendment’s warrant requirement. They argued that because the state has a “special need” to protect fetuses (to whom the state attorney general referred as “fellow South Carolinians”), women lose their Fourth Amendment rights to be free from unreasonable searches and seizures when they become pregnant. The hospital claimed, in essence, that the state should have the power to inspect and monitor women’s wombs to ensure a healthy pregnancy.

The Women’s Law Project together with the Center for Reproductive Rights represented Ms. Ferguson in the U.S. Supreme Court, which ruled in her favor. In the opinion, Justice John Paul Stevens wrote, “The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.” Importantly, these core constitutional protections are not shed when a woman becomes pregnant. The high court noted that to rule otherwise could well discourage women from seeking medical care when they need it most.

The Reedy Court found a perfect parallel between the unconstitutional search and seizure of Crystal Ferguson’s body fluids and the police seizure of Ms. Reedy’s hospital blood test results. The police officers claimed that Ms. Reedy consented to the drug testing when she signed consents to undergo a rape exam, but drawing on Ferguson, the appeals court rejected this reasoning, pointing out the practical consequences if rape victims knew they could be involuntarily drug tested for law enforcement purposes whenever they consented to treatment for sexual assault. The court concluded that, in addition to the other civil rights violations committed against Ms. Reedy, the police had violated her Fourth Amendment rights when they seized her hospital test results without her consent.

This evolving caselaw, building on earlier WLP victories, illustrates perfectly how the strategic selection of impact litigation works to strengthen and expand women’s rights. How right that Ms. Reedy’s legal weapon was forged a decade ago by another apparently powerless woman, equally marginalized and likewise betrayed by the institutions that should have protected her.

Crystal Ferguson died tragically in 2007. We wish she could have witnessed this late flowering of the seeds she planted during her own long struggle.

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Filed under Pennsylvania, Pregnancy, Rape

Historic Class Action Sex Discrimination Suit Against Wal-Mart

Six current and former female Wal-Mart employees will represent not only themselves in their sex discrimination lawsuit against the retail giant, but “‘all women employed at any Wal-Mart domestic retail store at any time since Dec. 26, 1998.’” This would include over a million women. The plaintiffs argue that their instances of discrimination are not unique, but “that the company’s ‘strong, centralized structure fosters or facilitates gender stereotyping and discrimination.” Their assertion is supported by not only their own stories, but 120 documented incidents from other female employees. If found guilty in discriminating against more than a million employees, Wal-mart could pay billions.

A federal appeals court certified the class-action suit, making it the largest class-action employment suit in U.S. history. Wal-Mart said in a statement that it was considering seeking review from the Supreme Court, but if the Court does not hear the case or hears the case and affirms the lower court’s decision, the lawsuit will continue on behalf of over a million plaintiffs. If it does hear the case and does not certify the suit, then female employees of the chain claiming sex discrimination will have to file individual lawsuits.

Wal-Mart claims that the complaints of discrimination from the six women are not indicative of systemic sexism. The women, however, say that while more than 70% of the Wal-Mart workforce is female, women occupy less than a third of management positions. The plaintiffs claim that, in general, women are “paid less than men in comparable positions, receive fewer promotions and wait longer for promotions.”

We will keep you informed about any updates in this case.

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Filed under Employment, Equal pay, Equality

In Christian Legal Society v. Martinez, Acceptance Wins

On June 28th the Supreme Court decided against the Christian Legal Society (CLS) in CLS v. Martinez case (PDF). The disagreement began when the Hastings College of Law, part of the University of California system, refused to grant CLS “Registered Student Organization” (RSO) status.  RSO status allows an organization to receive school funds, use school facilities, and use the Hastings logo, among other things. This status was refused the CLS because, Hastings argued, it was not in keeping with the school’s Nondiscrimination Policy.

The Hastings chapter of the CLS began when an existing Christian RSO affiliated with a national Christian organization that charters chapters at law schools. In order to be affiliated with the national organization, a chapter must require members to sign a “Statement of Faith” and to “conduct their lives in accord with prescribed principles.” Hastings rejected CLS’s application for RSO status as the organization excludes those who engage in “‘unrepentant homosexual conduct’ or [anyone] who holds religious convictions different from those in the Statement of Faith.”

CLS filed a suit against the school, citing a violation of their First and Fourteenth Amendment rights “to free speech, expressive association, and free exercise of religion.”  CLS also contended that the school’s anti-discrimination policy “target[s] solely those groups that organize around religious beliefs or that disapprove of particular sexual behavior, and leave other associations free to limit membership to persons committed to the group’s ideology.” Justice Ruth Bader Ginsburg, writing for the 5-4 majority, asserted that “this argument flatly contradicts the joint stipulation of facts the parties submitted at the summary-judgment stage, which specified: ‘Hastings requires that [RSOs] allow any student to participate . . . regardless of [her] status or beliefs. For example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs…’”

The Supreme Court also affirmed what the Ninth Circuit and the District Court stated, that the Hastings requirement that subsidized organizations abide by their Nondiscrimination Policy is “reasonable and viewpoint neutral.”

Despite the fact that the Supreme Court has found the Hastings Nondiscrimination Policy to be perfectly constitutional, “the Christian group said it would now go back to lower courts to prove that in fact the university did single it out for exclusion from recognized status.”

We are happy that the Supreme Court affirmed the constitutionality of the Hastings anti-discrimination requirement for RSOs. We agree with Justice Ginsburg’s opinion that the policy serves “the valid purpose of encouraging tolerance and diversity, and of refusing to subsidize discrimination.” You can read the Court’s full decision here (PDF).

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Filed under Education, Equality, LGBT, Sexual orientation

President Obama Nominates Elena Kagan to the Supreme Court

This morning, President Obama nominated Solicitor General Elena Kagan to the Supreme Court of the United States. If confirmed, Ms. Kagan will be the fourth woman to serve on the Court, and will bring the current number of female justices to three, the highest ever.

Ms. Kagan has never served as a judge, but she was nominated to the U.S. Court of Appeals for the DC Circuit in 1999 by President Clinton. At the time, she was serving as Associate White House Counsel. Her nomination, however, was thwarted by Senator Orrin Hatch, the chairman of the Senate Judiciary Committee, who didn’t schedule a hearing for her, which effectively ended her nomination.

Subsequent to working in the Clinton White House, Ms. Kagan presided as dean of Harvard Law School from 2003-2009. President Obama appointed her the first female Solicitor General in U.S. history in 2009. The Solicitor General represents the federal government in cases before the Supreme Court.

Ms. Kagan is generally regarded to be left-leaning and is openly pro-choice and pro-LGBT rights. During her time as dean at Harvard, she barred military recruiters from campus because of the “Don’t Ask, Don’t Tell” policy, but allowed them to return because the school risked losing federal funds. In written answers to questions from members of the Senate Judiciary during her nomination to the Solicitor General position, she wrote that “the Due Process Clause of the Fourteenth Amendment protects a woman’s right to terminate a pregnancy, subject to various permissible forms of  state regulation.” Critics on the left distrust her views on executive power and indefinitely detaining foreign combatants suspected of supporting al-Qaeda.

As we wrote in another blog post, appointing and electing female judges matters. If Ms. Kagan is confirmed as the next Supreme Court Justice, she will join Justices Ginsburg and Sotomayor in bringing women’s representation on the Court to 33%. While this is still far from a perfect representation of the female population on the bench, it would be a welcome step forward.

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Filed under Equality, Government, Reproductive Rights

Sotomayor Sworn In as First Latina Supreme Court Justice

Sonia Sotomayor made history on Thursday when she was confirmed as the Supreme Court’s newest justice by a 68-31 vote in the Senate, becoming the first Latina and only the third woman to sit on the Court. She was sworn in on Saturday by Chief Justice Roberts with her hand on a bible held by her mother, and was surrounded by about 60 guests, including Justice Anthony Kennedy, members of the Obama administration, friends, and family. “It is our nation’s faith in a more perfect union that allows a Puerto Rican girl from the Bronx to stand here now,” she said after being honored by the President at a White House reception. She continued:

I am struck again today by the wonder of my own life and the life we in  America are so privileged to lead…I am deeply humbled by the sacred responsibility of upholding our laws and safeguarding the rights and freedoms set forth in our Constitution. I ask not just my family and friends, but I ask all Americans to wish me divine guidance and wisdom in administering my new office.

It is thrilling to see Sotomayor added to the Court, and we applaud Pennsylvania Senators Casey and Specter (as well as the other 66 senators) for voting to approve her confirmation. We join the National Women’s Law Center in encouraging you to take a moment to thank the senators who made history and voted to confirm this exceptional woman. As President Obama remarked: “When Justice Sotomayor put her hand on that Bible and took that oath … we came yet another step to the more perfect union that we all seek.”

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Filed under Government, Supreme Court