Earlier this month, a curious thing happened in Texas. Despite repeated federal warnings, Texas enacted state rules that gutted its Women’s Health Program (WHP), a successful state program for low-income health care. Because this state action defunds almost half of the program’s health clinics solely due to their affiliation with Planned Parenthood, the Obama administration advised Texas that the move violated patient choice under federal law. Texas went ahead anyway, despite the ensuing loss of federal dollars as a consequence for noncompliance, and now over 130,000 low-income Texans will be without vital preventive services.
What didn’t happen? Texas didn’t drop its vendetta against essential women’s health providers, choosing instead to come between some of the state’s most vulnerable people and preventive care. What else didn’t happen? Texas, currently arguing before the Supreme Court that it is a victim of Medicaid coercion under the Affordable Care Act (ACA), was not coerced to maintain its WHP. A program that is—you guessed it—funded by Medicaid.
Last week’s final reply brief filed by the states in the ACA cases has a quick explanation for the contradiction. According to the states, the Medicaid expansion under the ACA is unique, the coercion is unique, the challenge is unique, and the ultimate Supreme Court decision will accordingly be unique as well. Nothing to see over there in uncoerced Texas, and don’t worry about setting bad precedent either. A convenient assurance about a case that clearly could have sweeping consequences for many more federal laws enacted under spending powers, but one of cold comfort in light of the boldness of the actual challenge and the ineffectiveness of similar attempts at damage control. Furthermore, it’s curious that these state litigants, who were previously so concerned about the lack of a limiting principle on the federal government’s powers to regulate commerce and spend in the general welfare, now introduce an argument challenging the Medicaid expansion that itself has no limiting principle.
The states seek to assure us that the only reason the Medicaid expansion is unconstitutionally coercive is because it will create the “single largest federal-state spending program in existence.” But what happens next time? What protects the currently second-single-largest program from being rendered unconstitutional once it becomes the single largest after the Medicaid expansion is struck down? Or the third, after the first two are struck down, and so forth all the way down to programs like WHPs? For that matter, what about other spending clause laws that function alongside Medicaid, like the antidiscrimination provisions of Title VI and other civil rights law? If the states are in court complaining about the ostensible absence of a ceiling to the defense of the constitutionality of the ACA, it would seem fair that they at least offer a floor for their own arguments. Slippery slopes are slippery both ways.
Indeed, trying to shoehorn the ACA challenges into a one-time-only mold seems a little incongruous with the dramatic language that the states use in describing these “grave constitutional questions” in this “brave new world.” Surely a decision on a case of such magnitude might be at least an object of curiosity down the line, if not actually useful for health care reform and the rule of law? Because if the states get the remedy they’re asking for, despite their request for limiting language in regards to the precedential effect, the real-world effect won’t be nearly as limited.
If it weren’t clear already, the reply brief pointedly marks down its belief that the Medicaid expansion is inextricably linked to the requirement to carry health insurance and the ACA overall. If the Medicaid expansion falls, goes the argument, so too does the ACA and all of its other benefits of affordable quality coverage for those without access to health care. Take Latinos, for example—the most uninsured population in the country. Like dominos, if the states succeed in convincing five justices that allowing more low-income Americans access to health insurance means the death knell of the Republic, not only will newly expanded Medicaid eligibility for millions of Latinos in 2014 be gone, but so too will insurance coverage for almost 750,000 young Hispanic Adults, the prohibitions on cost-sharing for 72 necessary preventive services, and the elimination of discriminatory and restrictive pricing and structuring of health insurance. These aren’t abstract harms.
The states assure us that because of their dedication to ensuring their low-income residents receive the benefits of Medicaid, they cannot possibly quit the entire voluntary program. But this altruistic motive does not, apparently, prevent them from removing certain beneficiaries and services from the program (such as poor women and life-saving transplants), or from sacrificing the other aforementioned consumer protections of the ACA which will benefit some of the exact same low- and moderate-income families they profess to protect. Are the states looking out for their most at-risk residents, or aren’t they? Is Medicaid voluntary or isn’t it? And how do the plaintiffs explain that some of the state litigants are already alluding to their intentions to break federal law indefinitely?
As the states enter the final stretch of preparations for oral arguments, rest assured that they’re refining these unprecedented legal arguments to a fine sheen. Don’t be misled by the lofty rhetoric, though. The real limiting principle at the root of all the overall jargon is quite simple: what states want, states get. The fate of the Texas WHP shows that this may sadly too often be the case in practice because of attacks on the ability to enforce federal rights. Strictly under the Constitution, however—a reinterpretation of federalism and the rule of law? Some might say so. But it’s one that seems to come back again and again. And that’s not what most would call unique.