The Supreme Court Oral Arguments: What Will Happen to the Affordable Care Act?

Shelby Emmett

The Supreme Court began three days of oral arguments on Monday to determine the constitutionality of the Affordable Care Act. The Supreme Court tackled four key issues:

          • The Anti -Injunction Act
          • Individual Mandate
          • Severability of the Law
          • Expansion of Medicaid

Read on for more information about each issue and the arguments made around them.

Anti-Injunction Act

The Anti-Injunction Act is a federal statute that, in essence, says a citizen must pay a tax first before they can sue over it. Since the “penalty” in the Affordable Care Act does not take effect until 2014, the Supreme Court first has to determine if the “penalty” was a tax and if so, determine whether or not it is subject to the Anti-Injunction Act.

The Individual Mandate

On the second day, the Court heard arguments over the constitutionality of the individual mandate—a provision in the law which requires all Americans, with very few exceptions, to obtain health insurance or face a penalty.

The government did not argue the validity of the individual mandate very well.  This became clear when the Justices reminded the government attorney he had five minutes remaining in his time and the lawyer replied, “Lucky me.”

The Supreme Court, particularly Justice Antonin Scalia, seemed very concerned about the extent of the federal government’s power to “force citizens to enter into private contracts” and wondered how far this new power would extend. The more liberal Justices, including Justices Kagan and Breyer, seemed to also be somewhat concerned about the governments reach, but also justified the expansion in the same way social security was justified over 70 years earlier.

Historically, the United States Supreme Court has defined “commerce” as “activity between the states” or “substantial activity within a state.” The Petitioners argue no commerce is taking place by a citizen who chooses not to enter the healthcare market and therefore the government’s position that they can regulate this market under the commerce clause is unconstitutional.

The Attorney for the government on the other hand, argued in essence that all Americans will “eventually” end up in commerce because all of us at one point or another will need health care and thus the commerce clause is proper justification for the individual mandate The Justices seemed skeptical of this, especially Justice Scalia who asked, “We are all going to need burial or cremation services too, are you saying the government can force us to buy burial services since eventually we will need it?” This same analogy was used to discuss cell phone use and 911 service, requiring pediatric coverage in insurance plans even for people without children, and of course, the already-infamous, “Can the government under this Act require citizens to buy broccoli?”

The government also argued that the mandate is necessary and a proper extension of the federal government’s power because the uninsured force the insured to cover their cost.  Justice Kennedy asked, “But isn’t the only reason there is cost-sharing because you (the federal government) force emergency rooms to treat the uninsured? Is that a constitutional basis to extend power?” The government shot back that it is against our “social norms” as Americans to turn away the sick—a very compelling  social policy justification for the law, but not a strong constitutional justification according to the conservative wing of the court.

The Severability Issue

On the third day, the Justices heard arguments over the severability of the law—if the mandate is found unconstitutional must the whole law be struck down or just sections of it?

The Affordable Care Act did not pass with a severability clause. In order for the bill to pass the Senate with only 51 votes, Majority Leader Harry Reid, (D-NV), passed it through the budget reconciliation process. Reconciliation does not allow for amendments that do not have a budget impact, so therefore no severability clause could be added.

The administration argued if the individual mandate is struck down then two key provisions of the law would have to go—the requirement that insurance companies accept everyone, and the ban on insurance companies from charging more for sick people.

The petitioners, 26 states, and the National Federation of Independent Business (NFIB) argued the mandate is so closely linked to the effectiveness of the other portions of the bill that all of it would have to be thrown out and further argued Congress’ intent was to have the whole law work together not just individual pieces.

Justice Ginsburg argued if some of the law is deemed unconstitutional, it would be best to leave the rest of the law in place and leave it up to Congress to make any changes it deemed fit. Justice Scalia asked the government attorney if he really expected the Justices to go through all 2,700 pages of the bill and pick and choose which provisions to keep.

Expansion of Medicaid

Lastly, the Court discussed the expansion of Medicaid under the Affordable Care Act. The States argued Medicaid is a voluntary program and threats by the federal government to withhold all Medicaid funding for refusing to voluntarily enter into the Medicaid expansion provision is by definition coercion and thus unconstitutional.

The Medicaid issue seems to be the petitioner’s weakest argument, while the constitutionality of the individual mandate seems to be the strongest argument.

The Supreme Court is likely to reach a decision on the fate of the Affordable Care Act in May or June of this year. It is impossible to know how the Supreme Court will rule simply by hearing their questions and analysis, but we do know there are “conservative” wings of the court and “liberal” wings of the court, which will likely affect the outcome of the final decision.

Justice Kennedy, a Reagan appointee, is likely to decide the fate of the Affordable Care Act because he is usually a “swing vote”. In some cases he has been fearful of expanding federal power and in other cases has been willing to expand it. Justice Kennedy seemed to be suspicious of the mandate, concerned how far the government could extend its power, but also gave signals he may be open to the mandate when he suggested the “uniqueness” of the health care market.

Backup Plans if the Affordable Care Act is found Unconstitutional

The Obama Administration stated this week that there are no contingency plans if the law is struck down.  Healthy Teen Network will keep you updated regarding the outcome of the case. Stay tuned for further information about the State Insurance Exchange implementation and what you can do in your state to influence the process.

Shelby Emmett, JD is the Policy and Legal Coordinator at Healthy Teen Network.


The Magic Formula: How to Prevent Teen Pregnancies without Explicit Information on Contraception and Condoms

Saras Chung

Our school systems ban us from presenting information about contraception and condoms to our students. How does a program that is proven to reduce teen pregnancies work if it doesn’t address contraception and condoms?

The task sounds impossible: Figure out how to reduce the number of teen pregnancies without discussing comprehensive contraception methods or tactics with students. It sounds like trying to teach a student how to read—without giving them a book. It seems impossible.

What may come as a surprise to many, however, is that there are strategies that accomplish reductions in teen pregnancies without including information on contraception and condoms and meet even the most conservative values.

When well-implemented, Positive Youth Development (PYD) programs have been shown to reduce the number of those who become pregnant or cause a pregnancy regardless of whether or not they are taught about contraception and condoms.

Yes, what sounds like a misnomer has been proven in rigorous studies for some of the most popular youth development programs. One can implement youth programs that prevent teen pregnancy…programs that may or may not directly refer to or teach about comprehensive contraception methods or tactics and still realize positive outcomes for teens. (Whether or not we should teach these strategies is a different question, and a topic for a separate blog post, however.)

It sounds like magic, but I’m about to share why these programs work. The formula is really no secret at all. It encompasses all that we know about teen development and what teens need to keep themselves healthy, surviving, and thriving–outcomes that we all hope to achieve regardless of our work’s focus.

Positive Youth Development (PYD) programs start with a strengths-based view of adolescence. Instead of viewing teens as broken beings that need to overcome obstacles, PYD’s framework upholds that all youth can make positive contributions to their families, schools, and communities. Core components of positive youth development programs :

  • Equip teens with skills in complex decision-making;
  • Help teens determine their core values and principles;
  • Facilitate development in a teen’s ability to analyze situations; and
  • Foster self-regulation.

All of these “ingredients” nurture the development of healthy social and emotional skills. Instead of focusing on issues to avoid, positive youth development initiatives help teens develop a sense of self-efficacy (the belief that they can achieve set goals) and provide them with the support and opportunities to practice these skills in the realms of family, peers, sexuality, academics, and all areas of their life.

In regards to sexual education, when teens do not receive the information in schools, PYD programs discuss generalized physical development and ensure that adolescents gain the courage, motivation, and assertiveness to seek out and talk to a caring and competent adult on topics where they may need more information and resources.

When we teach these types of skills to teens, the “payout” transcends outcomes in teen pregnancy. Effective PYD programming also provides returns on investment in areas of school persistence, academic performance, graduation, and community engagement.

Whether or not you are operating in a setting where teaching comprehensive sexual education is valued, taking a positive youth development approach to reduce potentially destructive sexual behaviors in teens creates dividends for teens beyond one realm of their life.

While, certainly, the ideal is to implement comprehensive sexuality education for teens, PYD programming provides a complement to the comprehensive sexuality education approach–a complement that does indeed see positive youth health outcomes.

-Saras Chung, MSW is a Research and Operations Manager at Wyman.

It’s a Feminazi’s World

Slut: A middle English word used around the 1450s to describe an individual who is considered to have loose sexual morals or who is sexually promiscuous. The term is generally pejorative and often applied to women as an insult or offensive term of disparagement, meaning “dirty or slovenly (Oxford Dictionary, 2012).

Prostitute: “Prostitute” is derived from the Latin prostituta. Some sources cite the verb as a composition of “pro” meaning “up front” or “forward” and “situere”, defined as “to offer up for sale”. A person who willingly uses his or her talent or ability in abase and unworthy way, usually for money (Merriam-Webster, 2012).

Feminazi: “an extreme or militant feminist”. An unspecified women whose goal is to allow as many abortions as possible (Merriam-Webster, 2012).

Sandra Fluke: Feminazi (According to the Limbaugh Dictionary) who testified before Democratic members of the House of Representatives on why she believed free contraception is generally essential and should be covered by employer health plans.

Vanessa Geffrard

Wondering why I decided to start off with a little vocabulary lesson? Well, if you do not have the slightest clue what these words refer to, I’m referring to the disgusting, humiliating, misinformed words political commentator Rush Limbaugh used to vilify the testimony of Sandra Fluke. Limbaugh has been known to push the envelope, but this time, his comments take aim at men and women of all political affiliations and backgrounds, and even his advertisers, who are starting to pull ads from his radio talk show. When Limbaugh called Fluke, a Georgetown University law student, a “slut” and a “prostitute” (neither of which accurately describe Fluke) for publicly advocating that employers cover contraception in their health plans, he crossed the line.

Limbaugh concluded his sexist rant by telling the women, also known as feminazis in his dictionary (see definition above), who want their contraception covered by their insurance plans, to post pornographic videos of themselves online in exchange for taxpayers funding contraceptives. When Limbaugh said, “If we are going to pay for your contraceptives and thus pay for you to have sex, we want something. We want you to post the videos online so we can all watch,” he went too far.

What is probably most offensive is that Limbaugh decided to go on a tirade discussing his viewpoint and repeatedly tried to make a connection between Fluke wanting contraceptives covered by insurance companies to women wanting to be “paid” to have sex. See the connection? Yeah, I didn’t either. Limbaugh did not bother to base any of his opinions on fact or conduct any preliminary research in order to formulate an informed and logical opinion about women and contraceptives.

In a November 2011 report, The Guttmacher Institute found that 88% [of women] take oral contraceptive pills for non-contraceptive purposes; most commonly, women used the medication for menstrual regulation (46%) and menstrual pain (40%). Guttmacher also cited that more than half of pill users, 58%, rely on the method at least in part for purposes other than pregnancy prevention; 31% percent use it for cramps or menstrual pain; 28% for menstrual regulation; 14% for acne; 4% for endometriosis. Therefore, many women, as mentioned by Ms. Fluke in her testimony, are using their right to use birth control pills in a non-contraceptive manner to help alleviate health problems experienced by women, and especially young women (Guttmacher, 2011).

Some other good things to know when accusing women of “having so much sex, they can’t afford birth control,” with “no self-control,” is that birth control’s benefits include:

  • Reducing the amount of blood flow during the period. Less blood loss is helpful in preventing anemia.
  • Endometriosis: Occurs when cells from the lining of the womb (uterus) grow in other areas of the body. Most women with endometriosis have cramps or pelvic pain during their menstrual cycle. Birth control pills are often prescribed to treat endometriosis and work by temporarily preventing periods.
  • Menstrual Cramps: When over-the-counter medications don’t help with severe cramps, birth control pills may be the solution because the pills prevent ovulation and lighten periods.
  • Lack of periods (“amenorrhea”) from low weight, stress, excessive exercise, or damage to the ovaries from radiation or chemotherapy: With any of these conditions, the hormone “estrogen” is not made in normal amounts by the body. Birth control pills may be prescribed to replace estrogen, which helps to regulate the menstrual cycle. Normal estrogen levels are important for healthy bones.
  • Reducing the risk of ovarian cysts: The risk of developing ovarian cysts is greatly reduced for birth control pills users because the pills help prevent ovulation. An ovarian cyst is a fluid-filled growth that can develop in the ovary during ovulation (the release of an egg from an ovary).
  • Protection against pelvic inflammatory disease: Birth control pills provide some protection against pelvic inflammatory disease (PID). Pelvic inflammatory disease is a serious bacterial infection of the fallopian tubes and uterus that can result in severe pain and potentially, infertility (, 2010).

And you know what’s funny? Again, as Guttmacher, The Center for Young Women’s Health, and Ms. Fluke indicate, many of these benefits and necessities to women’s health have nothing to do with a woman’s sex life (which is her business) or that of her partners. Advocating for insurance coverage for contraception has everything to do with a woman’s choice to choose to advocate for herself, her health, and have the right to affordable and reliable resources to help her ensure the health of her body, as recommended by her medical practitioner(s). Contraceptives have been shown to be reliable and critical to the healthcare needs of needs of women—if women need and choose to take them. Limbaugh’s tirade against “feminazis” like Fluke and women’s rights advocates who speak up against the unfair practices to keep women who desperately need their medications from having affordable access minimizes women’s health , turning it into political mockery.

In addition to this widespread denigration of women’s health, we now have Limbaugh attacking the personal sex lives of women in the most degrading sense,calling women sluts and prostitutes for simply accessing basic, standard health care. This topic of women’s health keeps resurfacing as a cornerstone issue in our society, and now is the time to express our opinions and advocate for ourselves. Women of all ages are being attacked, condemned, asked to make pornographic films of themselves, and are having their sexuality and reproductive health spawn out for all to judge, criticize, and testify upon without their permission. So what can we do? How can we express our voices?

  1. Don’t let misogynistic insults such as slut, prostitute, feminazi, etc. define, demonize, and divide us. We are empowered and we know our rights to affordable and reliable medications and health care. Let’s exercise our voices and speak up when we are being treated like second class citizens.
  2. Get involved! Get involved! Get involved! Write an email to your local congress person expressing your views against policies that affect women’s reproductive rights.
  3. Be an advocate and a voice for young women and girls in your community; hold a teach-in at your local community center, host a webcast, post informative articles on your Twitter and Facebook, sign an online petition against policies you see as anti-women, join or start a women’s circle, educate men and women around you on women’s reproductive health issue.
  4. Join the conversation and get information from and connect with us on Twitter and Facebook to keep abreast of the issues!

In conclusion, let’s not give up hope and let’s keep letting our voices be heard above noise of nonsense, hate, and misinformation.

And for you, Rush, in light of your gracious, heartfelt apology; in the words of Mr. Kanye West, “Yo Rush, I’m really happy for you and Imma let you finish your sorry apology and all, but the feminazis are giving the best testimonies of all time!”

Vanessa Geffrard is a Training and Technical Assistance Coordinator for Healthy Teen Network.

Through the Years: Exciting Times for Sexual and Reproductive Health!

Alexandra Eisler

I was 13, talking to my mother’s best friend about birth control, when I first realized times have changed, in terms of reproductive rights. She said when she was a teenager, single women couldn’t get birth control. Until that moment, I thought birth control had been around since the Dark Ages, and I was floored. She said it wasn’t until 1972 that unmarried women could purchase contraceptives in Massachusetts.

I grew up in the late ‘80s and early ‘90s when Salt-N-Pepa told us to talk about sex and “push it real good.” It was a time when Magic Johnson showed HIV wasn’t the end of the world, and not only was contraception available, but sex ed was a “thing” that happened in schools—for better or worse. (Sigh.) Things weren’t perfect, but we had a lot more information than my mother’s generation.

Fast forward to 2009. I was working as a public policy consultant at a branding meeting for my employer, and a board member talked about working in HIV prevention in the early 1980s. She said they did their best to fight HIV in an epidemic rife with stigma, myths, and fear. She said that despite their best efforts, few people knew how HIV worked at the time. She said she looks back and is grateful for evidence-based programs—we know lots about preventing the spread of HIV.

I think about the work I am privileged to be a part of and the substantial body of evidence from which we can draw. The teen pregnancy rate is at its lowest since 1972, and the birth rate continues to decline. Whoa! I think about how far the sexual health field has come in what really is a short time, and I feel proud to be part of it.

All of that to say, this is an exciting time for our work! We are standing in a new frontier: I imagine Lewis and Clark setting out to explore the West. Huge gains have been made, but never before have there been so many resources: so much knowledge about what works…so many talented people on the frontlines. Yet there’s a lot of work left to do.

Sometimes it feels like we’re taking shots in the dark trying to find the right answers, to make an impact and satisfy everyone, but it’s happening—we’re making a difference. We can’t continue making these gains without widespread support, both locally and nationally. So we have to keep sharing, supporting, and learning together.

Sometimes the “right answers” seem just out of reach, but the Centers for Disease Control and Prevention call this a winnable battle for a reason. We’re experiencing a massive push to support youth with tools and programming that work; this hasn’t been seen before. Every day we learn more about what helps the communities we live in, and I want to express my appreciation to all the wonderful folks who continue to fight for the futures of young people in this country!

What excites you about where the field is, today, in terms of adolescent sexual and reproductive health?

Alexandra Eisler is the Training and Technical Assistance Coordinator at Healthy Teen Network

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