A Change to the Non-Discrimination Regulations under the ACA?

When President Obama signed the Affordable Care Act (ACA) into law, it became the first healthcare law that prohibited discrimination on the basis of sex. [1] The specific anti-discrimination section of the ACA (1557) based many of its protections off of Title VII and IX of the Civil Rights Act of 1964. [2] These protections were meant to prevent “discrimination in health programs and activities administered by federal agencies…including Medicare, Medicaid, CHIP, and health care exchanges.” [3] 

Since 2010, the section has undergone many different interpretations by the Executive Branch depending on the Presidential administration currently in office. For example, the regulations provided by the Trump Administration differed greatly than those administered by Presidents Obama and Biden. 

One of the main differences regarding the interpretation of section 1557 over the previous three administrations has been its relation to sexual orientation. Both Obama and Biden have been significantly more broad and inclusive in reference to the term “sex” under the section in question compared to Trump. 

In the landmark Supreme Court case Bostock v Clayton County (2020), the Court ruled that discrimination on the basis of sexual orientation was illegal under Title VII of the Civil Rights Act of 1964. [4] In summary, Gerald Bostock, a gay man, was repeatedly verbally discriminated against during his time employed for Clayton County, Georgia, and was fired from his job shortly following his participation in a softball league for gay men. In the plurality opinion, the Court stated that Title VII’s term of “sex” applied to sexual orientation, since if Bostock were a woman (attracted to men), he would not have faced similar discrimination. 

The decision in Bostock (2020) is seemingly contrary to the interpretations made by the Trump Administration “which had limited the discrimination protections only to some programs administered by HHS and a limited class of health insurance businesses.” [3] Bostock (2020), however, was decided before Trump issued regulations regarding section 1557, weakening the legitimacy of theoretical legal challenges to his regulations.

The Biden Administration issued its final regulations to section 1557 on May 6th, 2024, which went into effect nearly 60 days later in early July. [5] The regulations outline strong protections for those in the LGBTQ community as well as women terminating a pregnancy. 

In the past, there have been many cases brought before various federal courts across the country specifically regarding regulations such as these. Parties in opposition to these regulations often cite abortion and transgender healthcare as being contrary to their religious beliefs and, therefore, unconstitutional under the First Amendment’s free exercise clause. The validity of these claims depends on the court, as some courts have been more favorable to religious exceptions to these regulations in comparison to others. 

However, just this week, the US Court of Appeals for the Fifth Circuit hinted at reversing some of Biden’s regulations on section 1557 of the ACA. [6] The DOJ responded by citing that the regulations are completely in line with SCOTUS’ decision in Bostock (2020) and that reversing the regulations would, in fact, be tantamount to defying the Supreme Court ruling in the landmark case.

Since Bostock (2020) was decided by the Supreme Court, it would require a Supreme Court ruling to be overturned. If challenges to the Biden Administration’s rulings make their way to the high court, could we possibly see the Court reverse its decision from 2020? The nomination of Amy Coney Barrett to replace the late Justice Ruth Bater Ginsburg could play a major role in the possibility of Bostock (2020) getting overturned.

The court would likely cite religious freedom and a violation of the free exercise clause if Bostock (2020) were to be overruled. This would follow the many religious exemptions made by the Court over the last few years since the appointment of more conservative justices.

Sources:

1. Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111–148, 124 Stat. 119 (2010)
2. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964)
3. Aiseosa Osaghae & Andrew J. Twinamatsiko, Legal Challenges Against ACA’s Section 1557 Anti-Discrimination Protections (2024), https://oneill.law.georgetown.edu/legal-challenges-against-acas-section-1557-anti-discrimination-protections/.
4. Bostock v. Clayton County, 140 S.Ct. 1731 (2020) 
5.  Lindsey Dawson, Laurie Sobel, Kaye Pestaina, Jennifer Kates, Samantha Artiga, and Alice Burns, The Biden Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA ( 2024), https://www.kff.org/affordable-care-act/issue-brief/the-biden-administrations-final-rule-on-section-1557-non-discrimination-regulations-under-the-aca/.
6. Celine Castronuovo, HHS Defends Biden Health Bias Rule in Appeal of Nationwide Pause (2024), https://news.bloomberglaw.com/health-law-and-business/hhs-defends-biden-health-bias-rule-in-appeal-of-nationwide-pause.