HEALTH CARE ACCESS
EDITED BY EMMA CIHANOWYZ, LORNA LOCH, KAITLYN WILLOUGHBY, &
SAVANNAH JELKS
I. INTRODUCTION ......................................... . 578
II. BACKGROUND OF HEALTH CARE ACCESS IN THE UNITED STATES . . . . . . . 578
A. HEALTH CARE ACCESS LANDSCAPE PRIOR TO THE ACA . . . . . . . . 579
B. KEY CHANGES INTRODUCED UNDER THE ACA ............... 580
1. New Consumer Protections Effective September 23, 2010 581
2. The Insurance Marketplace and Employer-Related
Mandates from 2014 Through 2017 . . . . . . . . . . . . . . . . . . . . 582
3. Improving Quality, Lowering Costs, and Expanding
Access to Quality Care Through 2024 . . . . . . . . . . . . . . . . . . 583
4. Reforms to Medicare, Medicaid, and CHIP . . . . . . . . . . . . . 585
5. Changes to Medicaid’s Home and Community-Based
Services Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587
C. CHALLENGES TO THE ACA’S CONSTITUTIONALITY—
CONGRESSIONAL AUTHORITY ........................... . 590
1. National Federation of Independent Business v. Sebelius . . . 590
III. ACCESS TO SEX-SPECIFIC HEALTH CARE UNDER THE ACA . . . . . . . . . . 594
A. CHALLENGES TO THE ACA’S CONTRACEPTIVE MANDATE
(RELIGIOUS FREEDOM OBJECTIONS)....................... 595
1. For-Profit Corporations: Hobby Lobby . . . . . . . . . . . . . . . . . 596
2. Opt-Out Provisions for Religious Non-Profits and
Nonprofits Exempt from ERISA: Little Sisters of the Poor 597
3. Opt-Out Provisions for Religious Non-Profits in General
Post-Little Sisters: Wheaton College ................... 599
B. EXPANDING ACCESS TO FAMILY-PLANNING SERVICES THROUGH
MEDICAID.......... ............................... 599
C. PROHIBITION ON “GENDER RATING” IN THE PRIVATE INSURANCE
MARKETPLACE .. .................................... 600
D. EXPANDING ACCESS TO SEX-SPECIFIC HEALTH CARE SERVICES IN
THE PRIVATE INSURANCE MARKETPLACE ................... . 600
IV. THE ACA’S PROHIBITION ON DISCRIMINATION ................... 602
A. THE ACA AND THE INTERSECTION OF RACIAL, ETHNIC, AND
GENDERED HEALTH DISPARITIES ......................... 603
1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
2. Measures in the ACA to Help Eliminate Health
Disparities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
577
3. Additional Measures Used to Implement the ACA and
Eliminate Health Disparities .......................... 605
B. TRANSGENDER HEALTH DISPARITIES AND SECTION 1557 ........ 606
V. CONCLUSION ........................................... 612
I. INTRODUCTION
Health services in the United States are distributed to individuals through a
dual system of insurers and providers.
1
Health System Overview: United States, THE COMMONWEALTH FUND, 1 (Dec. 2020), https://
perma.cc/L2K8-GWQT.
Although Americans have the option to
pay providers themselves and hospitals are required to provide emergency treat-
ment,
2
in practice, “health care access” requires access to both insurance and will-
ing providers. To expand such access, Congress and the President engaged in an
effort to overhaul the health care financing and delivery systems, resulting in the
passage of the Patient Protection and Affordable Care Act (ACA) and the Health
Care and Education Reconciliation Act (HCERA).
3
In 2016, estimated out-of-
pocket costs for individuals qualifying for cost-sharing reductions were markedly
lower—with plan and health care usage variations—in the largest markets of the
thirty-eight states that undertake marketplace enrollment via the federal website.
4
S. R. Collins, M. Gunja, & S. Beutel, How Will the Affordable Care Act’s Cost-Sharing
Reductions Affect Consumers’ Out-of-Pocket Costs in 2016, THE COMMONWEALTH FUND (Mar. 17,
2016), https://perma.cc/3PT2-KPK8.
Additionally, since 2017, marketplace insurers have been able to offer consumers
standard insurance plans to bring about more equal cost sharing.
5
However,
health exchange premiums saw a greater increase for 2023-2024 plans versus
2022-2023 plans.
6
Percent Change in Average Marketplace Premiums by Metal Tier, 2018-2024, KFF, https://perma.
cc/8VVB-MVMP.
Part I of this Article provides a brief overview of health care access including
the status of access prior to the ACA, key changes introduced by the ACA, and
legislative and judicial challenges to the ACA. Part II discusses provisions of par-
ticular pertinence to women and transgender men. Part III discusses the prohibi-
tion of discrimination based on gender identity and the remedies for such
discrimination.
II. BACKGROUND OF HEALTH CARE ACCESS IN THE UNITED STATES
To wholly appreciate the context and conditions framing the recent history of
health care access in the United States, this section will discuss: (A) Americans’
1.
2. See Emergency Medical Treatment and Active Labor Act, 42 U.S.C.A. § 1395dd(a)(h) (West,
Westlaw through Pub. L. No. 118–106).
3. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) [hereinafter
referred to collectively as ACA]; Health Care and Education Reconciliation Act of 2010, Pub. L. No.
111-152, 124 Stat. 1029 (2010) [hereinafter HCERA].
4.
5. Id.
6.
578 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:577
access to health care prior to the adoption of the ACA; (B) significant transforma-
tions to the United States health care landscape advanced by the ACA, including
new consumer safeguards, employer and insurance marketplace-related man-
dates, enhanced quality and access to health care through 2023, and social health
care program reforms; and (C) specific cases challenging the legality of the ACA.
A. HEALTH CARE ACCESS LANDSCAPE PRIOR TO THE ACA
Before the ACA’s creation in 2008, private health insurance covered 202.6 mil-
lion Americans (67.2% of the U.S. population in 2008).
7
CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR, & JESSICA C. SMITH, U.S. CENSUS BUREAU,
INCOME, POVERTY, & HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2012 CURRENT
POPULATION REPORTS 67, Table C-1 (2013), https://perma.cc/Z5XX-G5DQ.
Meanwhile, 44.8 million
Americans were uninsured,
8
and as many as 25 million more were underinsured.
9
“Underinsured” refers to people who “have health coverage that does not adequately protect them
from high medical expenses.” Cathy Schoen, Sara R. Collins, Michelle M. Doty, & Jennifer L. Kriss,
How Many Are Underinsured? Trends Among U.S. Adults, 2003 and 2007, THE COMMONWEALTH FUND
(June 10, 2008), https://perma.cc/9QMU-2UBJ.
This phenomenon was largely the result of changes in insurance design that
increased out-of-pocket costs
10
for both the poor and those earning above 200%
of the Federal Poverty Level (FPL).
11
Under this patchwork system prior to the ACA, there were numerous systemic prob-
lems within the individual health care coverage space. Millions of Americans did not
have insurance, but even with insurance, nearly one in two people could be discrimi-
nated against based on gender or a pre-existing condition.
12
See David Simas, Health Coverage Before the ACA, and Why All Americans Are Better Off Now,
OBAMAWHITEHOUSE.ARCHIVES.GOV (Jan. 23, 2014), https://perma.cc/333P-LC7Q.
Private insurers could deny
anyone access to health care coverage due to their “health status,” using “pre-existing”
conditions like cancer or pregnancy to turn people away.
13
See Nicole Rapfogel, Emily Gee, & Maura Calsyn, 10 Ways the ACA Has Improved Health Care
in the Past Decade, CTR. FOR AM. PROGRESS (Mar. 23, 2023), https://perma.cc/Q7GR-HND9.
Women in particular faced
insurance costs up to 1.5 times higher than others and even then, 62% of insurance
plans did not cover essential services like maternity coverage.
14
In the three years
before the ACA’s enactment, insurers also increased premiums by an average of 10%
yearly for individuals who stayed on the same plan.
15
Press Release, New Analysis of Health Insurance Premium Trends in the Individual Market
Finds Average Yearly Increases of 10 Percent or More Prior to the Affordable Care Act, THE
COMMONWEALTH FUND (June 5, 2014), https://perma.cc/N2LW-BNN5.
Under the ACA, twenty million
more Americans, spanning income levels, races, and ages, gained health care coverage
between 2010 and 2016.
16
NAMRATA UBEROI, KENNETH FINEGOLD, & EMILY GEE, U.S. DEP’T OF HEALTH & HUM. SERVS.,
HEALTH INSURANCE COVERAGE AND THE AFFORDABLE CARE ACT, 2010–2016 at 2 (2016), https://
perma.cc/H7G6-M5HR; see also Rapfogel, Gee, & Calsyn, supra note 13.
Protections were added for those with pre-existing
7.
8. Id.
9.
10. See id. at 2.
11. Id. at 1.
12.
13.
14. Id.; see also Caroline Rosenzweig, Usha Ranji, & Alina Salganicoff, Health and the 2016
Election: Implications for Women, 26 WOMEN’S HEALTH ISSUES 585, 585–86 (2016).
15.
16.
2025] HEALTH CARE ACCESS 579
