VI. Conclusion: The Future of Health Care Reform and Civil Rights

The Affordable Care Act is legislation designed and intended to incorporate a civil rights advance into the existing health care status quo--rather than nationalizing health insurance or health care, as claimed, it requires and assists individuals to purchase health insurance from private companies. It remains a conservative piece of legislation despite all of the uproar against it. As one commentator put it: “[the ACA] is an incomplete and unfinished reform.”NFIB v. Sebelius is not only one of the first battles over the ACA, but it is also likely to be one of the first of many battles over the necessity of greater institutional control in our health care delivery system. And yet, even a conservative piece of civil rights legislation has turned out to not be immune from the limitations that seem to accompany all civil rights advances. The health care system in the United States can be reformed only in incremental steps, and the Supreme Court, while allowing some of those steps to proceed, has made subsequent reforms more difficult to achieve.

This is particularly problematic given what is at stake. After all, without incrementalist strategies, there could have been no civil rights movement. The enactment of EMTALA was one incremental step toward ending racial disparities in health care. Many more, including those set forth in the ACA, are needed.

Ultimately, the Court's ruling in NFIB v. Sebelius seems likely to have three effects: it may narrow the opportunities for expansion of civil rights, it will complicate the implementation of the ACA and other public health measures, and it will limit Congress's ability to use Medicaid to effectuate national health policy. The conservative majority's support for an inactivity/activity limitation on the commerce power will embolden those who wish to challenge governmental regulation by arguing that it infringes on individual liberty. For example, one of the most prominent civil rights issues of the present day is marriage equality for gay and lesbian couples. The Supreme Court recently granted certiorari in two marriage equality cases to be heard in the 2013 session, and, in time, it is likely that a refusal of service case similar to Heart of Atlanta will reach the Supreme Court. How will that Court weigh an asserted liberty interest in not renting a motel room to a married gay couple against congressional power to address the economic effects of discrimination?

Before such a case reaches the Supreme Court, the Court will likely have the opportunity to rule in a variety of cases relating to the ACA and health care. For example, lawsuits filed by Catholic institutions challenging the ACA's requirement that they provide their employees with insurance that covers contraception are now pending in a number of federal courts around the country. How these and other conflicts are resolved will shape the ongoing debate on health care and determine whether our country can reach a consensus that will allow it to develop a universal and sustainable health care system.

Perhaps in this next set of cases, advocates will seize the opportunity to talk about health care reform as civil rights work aimed at addressing health disparities. Perhaps they will even have the opportunity to mention EMTALA by name. Through the widely publicized oral argument and the NFIB v. Sebelius decision, the Supreme Court has focused the health care debate on insurance markets and big government, rather than on health disparities and access to care. Only by talking about health care reform as civil rights work can citizens and advocates re-focus the debate, find national consensus and move forward to implement and inevitably improve the Affordable Care Act.

Keeping the ACA largely intact was no small victory. Critically, the ACA provides a framework within which reforms--both those currently scheduled and those not yet envisioned--can be implemented. Advocates for reform will not have to start over. However, that framework may be exceedingly narrow. Beyond utilizing the broad taxing power granted by the Court in NFIB v. Sebelius, Congress will have to learn how to enact public health measures without altering the relationship between the government and the individual. Further, Congress may have to do so without using the Medicaid program as a means for achieving its public health goals. While most states are likely to implement the ACA's Medicaid expansion, there is no guarantee that all will do so, even if it is in their financial interest.

On a more positive note, long-time advocates for the expansion of Medicare may finally develop the momentum they need to wage a successful “Medicare for All” campaign that would extend Medicare coverage beyond the aged and chronically disabled. To be sure, the scarcity of resources in the American health care system cries out for reforms that will bring more national control and standardization. If those reforms cannot be achieved through the Medicaid program, then Congress may need to follow the Court's lead by raising taxes and expanding Medicare instead.

After NFIB v. Sebelius, one thing remains clear: the job of reforming our health care system will take years. Finally, however, progress has been made towards effectuating significant changes to our health care system. As we move forward through these years of reform, we would do well as a nation to dwell on those areas where we share a consensus on health care. Only by talking openly and directly about them will we be able to reach our goals together.



. Senior Attorney, Advocates for Basic Legal Equality, Inc., Toledo, Ohio.