Of Counsel: HIV and Health Care Reform

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March 6, 2012

HIV/AIDS advocates justly celebrated enactment of the Patient Protection and Affordable Care Act (ACA), because of the greatly increased access to health care ACA would provide to improve HIV—related care and assist in curbing the HIV/AIDS epidemic in this country. For this reason, I knew Lambda Legal’s HIV Project had an interest in supporting the constitutionality of the law before the U.S. Supreme Court on behalf of HIV advocates. What I didn’t realize—at least not until Susan Sommer, Lambda Legal’s Director of Constitutional Litigation, and I completed our research—was just how compelling an argument in favor of the constitutionality of ACA’s lynchpin feature, the minimum coverage provision (otherwise known as the “individual mandate”) we could make by using the HIV/AIDS epidemic as a lens through which to view the potential effects of this historic legislation.

The resulting brief, drafted in conjunction with pro bono counsel at Ropes & Gray, focuses upon the exclusion of people living with HIV (PLWH) from the health care insurance market, the effect of that market dynamic upon the care and treatment provided to PLWH, and the empirical proof that the individual mandate is an essential component of effective health care reform and our corresponding ability to stem the HIV/AIDS epidemic.

Congress unquestionably has the power to address the exclusion of particular groups from participation in interstate markets, as explained in the Supreme Court opinion upholding the constitutionality of the Civil Rights Act of 1964 under the Commerce Clause (Heart of AtlantaMotel, Inc. v. U.S., 379 U.S. 241 (1964). Due primarily to health insurer policies excluding those with pre-existing conditions, only 17% of the approximately 1.2 million PLWH in the United States have private health insurance (compared to 67% of the general population). As a result of the patchwork quilt of programs and services through which care is provided to the rest of the population of PLWH—and despite the fact we now have the medical knowhow to make HIV a chronic, manageable condition, and thereby curb the spread of HIV—only 19% of PLWH in this country have a suppressed viral load.

Congress may act under the Commerce Clause to rectify this type of problem with interstate commerce, particularly when the lives of its citizens are at stake and it has had limited success in addressing the problem through other means. Furthermore, the Commerce Clause power is not in any way diminished or curtailed simply because the legislation is simultaneously combating injustice and the violation of basic human rights, as is the case with respect to the exclusion of PLWH from the health care and health insurance markets.

Of course, recognition of Congress’s power to disallow pre-existing condition exclusions does not speak to whether the individual mandate is a valid means of exercising that power. This is where the Necessary and Proper Clause comes into play. To make the statutory scheme work—and prevent the health insurer insolvency that likely would result from allowing people to wait to purchase health care coverage until after they were diagnosed with a serious health condition—Congress had to bring every American, regardless of the current state of their health, into the health insurance market. The success and financial soundness of health care reform in Massachusetts, when compared with the failure of health care reform in states that chose not to include an individual mandate, proves the validity of the foregoing proposition.

In the five years since health care reform came to Massachusetts, remarkable strides have been made in addressing the health care needs of PLWH and curbing the spread of the HIV/AIDS epidemic. As just one example, between 2005 and 2008, Massachusetts had a 37% decrease in HIV infections, while the nation had an 8% increase. With improvements like this foretelling what the nation can expect after ACA is fully implemented, Lambda Legal is proud to be doing its part to ensure that this statute is found constitutional—for the health of PLWH, of the LGBT community, and of every American.