National Health Law Program: For Those Fighting for Health Equity, the Supreme Court is a Stumbling Block

WASHINGTON, Oct. 27 -- The National Health Law Program issued the following statement by Executive Director Elizabeth G. Taylor:

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America is sick. More than 225,000 people have died from COVID-19, with no end in sight. And for the second time in six months, Mitch McConnell and the GOP Senate have sacrificed the nation's health in the naked pursuit of political power. They failed to pass COVID relief this summer and fall, and have failed us again with the rushed appointment of Amy Coney Barrett to the Supreme Court.

Amid this crisis, it is hard to believe that on November 10th, the Supreme Court will hear arguments in a case seeking to invalidate the Affordable Care Act, the law that has made regular health care available for the first time to millions of people. Other significant health care cases will follow. The confirmation of Amy Coney Barrett to the Supreme Court in the final weeks of the election threatens decades of progress.

The COVID-19 crisis has revealed to most Americans the deep-rooted inequities that torment this nation. Black, Indigenous, and People of Color have long known that racism is deadly -- not just at the societal level but at a piercing, cellular level. Studies show that the stress caused by racism causes chronic inflammation and a host of other conditions that make people physically ill. Coupled with legal, political, economic, and health care systems designed to exclude and exploit marginalized peoples, the COVID pandemic has turned into a veritable plague.

The numbers are horrifying. Black people die at a rate almost twice as high as their share of the population. Latinos are dying at a disproportionate rate in 45 states. And in western states, Native Americans are dying at rates five times higher than the general population.

This is no accident, but the result of centuries of government policy, often upheld by the Supreme Court, that disadvantaged people of color for the benefit of White Americans. The social safety net of the New Deal and post-war employer-based health insurance were designed to exclude Black Americans. Undocumented immigrants are largely barred from access to health insurance. Women, gender non-conforming people, and sexual and gender minorities, particularly those at the intersection of identities, still suffer under stigma, increased medical scrutiny, and laws that try to rob them of bodily autonomy. And of course, European and American settlers all too eagerly exploited indigenous communities weakened by novel diseases.

For many Americans, the events of this year require us to open our eyes to the truth that we have been able to avoid for far too long. For the first time, a (slim) majority of White Americans see racism as a significant threat to the wellbeing of our republic, and there is growing consensus that we must urgently address the deep inequities that continue to haunt the "American Experiment." These stark health disparities result not just from unequal access to health care, but are also fueled by (and contribute to) inequity in income, housing, education, and our criminal justice system. Drastic reform in all of those areas is needed.

But, consistent with our history, a small cohort of white men (and a few women) in the U.S. Senate have determined the fate of our large, diverse, multi-ethnic, multi-religious society. They represent an older, whiter, more rural electorate often driven by racial resentment and xenophobia.

Coney Barrett's elevation to the high court must not stop us from addressing health inequities.

The ACA has been an incredible success, despite repeated Republican attacks from Congress, the Trump administration, Republican-led states, and the judiciary. Over the last decade, more than 20 million people have gained access to health care. Thirty-seven states and the District of Columbia have expanded Medicaid to an additional 12 million individuals and families. Studies show expansion is preventing thousands of premature deaths each year, 19,000 so far! Provisions of the ACA protect those with pre-existing conditions and ensure women aren't charged more than men. Essential Health Benefits guarantee that all compliant plans cover major care areas, including contraceptive and maternal and birth care. The ACA's nondiscrimination provision has protected transgender individuals and people with limited-English proficiency.

The positive impacts of the ACA are hard to overstate, but it is just a jumping-off point. Insurance coverage and access to quality care have changed peoples' lives for the better, but the deep-rooted ills of health inequity, on both a personal and societal level, cannot be fixed overnight. We have much more work to do to ensure that everyone in the country has the opportunity for a healthy, flourishing life.

For half a century, the National Health Law Program has fought to protect and expand health rights, and we will continue that fight. But in this particular moment, we take solace in the words of the late Supreme Court Justice Thurgood Marshall, who said, "Where you see wrong or inequality or injustice, speak out, because this is your country. This is your democracy. Make it. Protect it. Pass it on."