OPINION: Without Ruth Bader Ginsburg, the Affordable Care Act and LGBT+ healthcare are at risk

by Omar Gonzalez-Pagan | Lambda Legal
Friday, 16 October 2020 09:20 GMT

A painting is seen in a storefront on Broadway of Associate Justice of the Supreme Court of the United States Ruth Bader Ginsburg who passed away in Manhattan, New York City, U.S., September 18, 2020. REUTERS/Andrew Kelly

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

The U.S. Supreme Court could send us back to when insurance was denied to the HIV-positive and transphobia in healthcare was the norm

Omar Gonzalez-Pagan is a senior attorney at Lambda Legal

For the first time in 27 years, the Supreme Court began its term without Ruth Bader Ginsburg.

A legal titan and innovative advocate, Ginsburg engineered the jurisprudence on sex discrimination that opened doors for women and has been of great import for LGBT+ people. The author of more than 483 Supreme Court opinions, her legacy touched upon many subjects, from sex discrimination and reproductive rights to civil procedure and LGBT+ equality.

While Ginsburg did not author many opinions specifically addressing healthcare access, those she did write, in combination with her votes and sharp questioning during oral arguments, played a major role in shaping the Supreme Court’s jurisprudence regarding healthcare, including, most recently, the Affordable Care Act.

As we argued to the Supreme Court this year in California v. Texas, the ACA has been instrumental in improving access to healthcare – a human right – for LGBT+ people and individuals living with HIV.

The ACA’s prohibitions on discrimination and other key provisions have radically changed for the better the ability of our community to access this basic human right. For example, the ACA’s nondiscrimination provision – the first major civil rights law in decades – prohibits discrimination based on sexual orientation, gender identity, and HIV status in healthcare. This has been crucial to ensuring equal access to care for LGBT+ people and HIV-positive people.

Medicaid expansion, which has ensured access to care for more than 10 million people who were previously uninsured, has also been critical to expanding access to care for LGBT+ people and those living with HIV. This is because LGBT+ people are disproportionately low income and approximately 60% of people living with HIV have income low enough to benefit from it.

When the Supreme Court heard the first legal challenge to the ACA, NFIB v. Sebelius, in 2012, Justice Ginsburg voted with the majority to uphold the constitutionality of the ACA and the individual insurance mandate, noting in her separate opinion that, “The provision of healthcare is today a concern of national dimension.”

However, with Justice Ginsburg’s passing, the future of the ACA is in real peril. What is at stake is not just the coverage that millions of Americans have gained through the new insurance exchanges and Medicaid expansion, but also the parts of the law that protect Americans with pre-existing conditions and that prohibit discrimination on the basis of sex and other characteristics.

A new Supreme Court without Ginsburg could eliminate the ACA overnight, sending us back to those days when insurance was denied to those living with HIV; when sex discrimination in healthcare was pervasive; and exclusions of gender-affirming care for transgender patients were the norm. And to be clear, the president’s nominee to replace Justice Ginsburg has already expressed her views, strongly criticizing Chief Justice Roberts for upholding the ACA’s constitutionality in 2012.

Put simply, who sits on Justice Ginsburg’s seat matters. Our rights, but more specifically our access to healthcare, hang in the balance.


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