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W. David Koeninger

W. David Koeninger, The Statute Whose Name We Dare Not Speak: EMTALA andTthe Affordable Care Act, 16 Journal of Gender, Race and Justice 139 (Winter 2013).

Scholars and activists have long suggested that every judicial or legislative victory for civil rights is tempered by the fact that the new rights won must be incorporated within a system largely designed to maintain the status quo. This Article examines this tension by addressing the struggle for equal access to health care in the United States. Access to health care was a significant, if underpublicized, aspect of the civil rights movement, and disparities in access to health care remain one of the most significant pieces of unfinished business in our country's ongoing struggle toward racial equality. Not surprisingly then, this summer's Supreme Court decision upholding the constitutionality of the Patient Protection and Affordable Care Act (ACA) fits neatly into our country's ongoing civil rights narrative--a victory tempered by new hurdles to altering the status quo. As such, this Article suggests that by upholding the individual mandate as a constitutional exercise of Congress's power to tax, articulating limits on Congress's ability to use the commerce power, and turning the ACA's Medicaid expansion into a state option, the Court, particularly Chief Justice John Roberts, may have altered the pathways by which Congress may reform and regulate health care and, equally significantly, protect the civil rights of minority groups.

This Article is part of a larger exploration of how our society comes to consensus about particular health care issues. As a nation, we have been and remain embroiled in a divisive debate about our health care system and the package of reforms enacted by Congress in 2010 that will alter or affect almost every aspect of that system--from access, to financing, to service delivery. Some of this law is controversial; however, much of it is not. This Article will unpack the complex array of issues in the American health care system and explore one area of consensus, because it is only through identifying consensus on basic principles that we can move forward to address health disparities and reform our health care system. Such analysis will provide insight into opportunities missed by defenders of the ACA and potential paths forward to achieving the ACA's larger goals.

This Article locates the Obama Administration's health care reform efforts-- namely the Patient Protection and Affordable Care Act --within an overarching narrative about the consequences, some of them unintended, of health care statutes. The particular statutes that this Article will address-- the Hill-Burton Act, the Medicaid and Medicare statutes, the Emergency Medical Treatment and Active Labor Act (EMTALA), and the Affordable Care Act --are all parts of the story of the development of our modern health care system, and all may be considered attempts to reduce or eliminate health disparities in the United States. These statutes are rooted in part within the civil rights movement, however they extend well beyond it, telling a story about the twin difficulties of forging a consensus as to how we will take care of our sick and disabled fellow citizens and further, how to act on that consensus. Ultimately, they help to explain why health care reform has become unavoidable and raise the question of whether the incremental reforms that have characterized our system can advance the fight to reduce health disparities.

By thinking and talking about health care reform as civil rights legislation, we can gain insight into these themes. In particular, this Article will focus on the Emergency Medical Treatment and Active Labor Act (EMTALA)-- why it was adopted, its status as a civil rights enactment, and some of its consequences. EMTALA gives individuals an explicit right to emergency medical treatment by hospitals that participate in the Medicare program. It reflects the blunt national consensus that in the United States, we do not allow the sick and the injured to die in the streets. And yet, Americans have never achieved the same consensus about how to pay for the treatment provided pursuant to EMTALA or how to manage its requirements.

This problem of turning consensus into policy has plagued policymakers throughout the history of our nation's attempts at health care reform. Policymakers must design policies that implement agreed-upon principles without destroying the national consensus about those principles. They must consider whether constituents would be more likely to support a health care policy or set of policies if our national consensus was more explicit and the consequences of that consensus were better understood, and then they must act accordingly. For example, they must decide whether it is better to develop a single national health care system, or whether the limits of consensus compel a more incremental and flexible approach with a variety of state options.

Part II of this Article will review some of the United States' post-World War II legislative attempts to address particular disparities in our health care system at the federal level, examining the passage and implementation of the Hill-Burton Act, Medicare, and Medicaid. In doing so, it will describe how those enactments set the stage for the passage and implementation of EMTALA. Part III describes EMTALA, its enactment, and some of its consequences--both intended and unintended. It will elucidate how a simple, four-page statute enacted without fanfare in 1986 has proven to be one of our country's most successful civil rights laws, and how its consequences have made significant changes to our health care system virtually inevitable. Part IV will discuss the Patient Protection and Affordable Care Act and explain how some of its most critical and controversial provisions--most notably the individual mandate--can be seen as a response to the consequences of EMTALA. Further, it will expose how the national consensus about the need for EMTALA appears to dissolve when we attempt to determine how to fund its requirements. Finally, Part V will address the arguments before the Supreme Court and the Court's rulings on the issues presented in National Federation of Independent Business (NFIB) v. Sebelius, the case that considered the constitutionality of certain provisions of the Patient Protection and Affordable Care Act. During oral argument, both the parties and the Court seemed hesitant to even mention EMTALA, nor is EMTALA given much emphasis in the Court's opinions. This reflects a missed opportunity. By failing to argue that the ACA was civil rights legislation, building on prior enactments such as EMTALA and Medicaid, the law's proponents gave the Court an opening to draft a very narrow decision, limiting the extent of their victory.

Moreover, because the oral arguments and the Court's ultimate decision are themselves part of the national debate over health care reform and health care policy, it is crucial to the implementation of health care reform that we forge broad and strong links between areas of national consensus about health care policy and enacted health care reforms. Talking about health care reform as a civil rights issue is critical to moving forward with implementation of those reforms. It may still be that the individual mandate--the requirement that all Americans purchase health insurance--will become a part of our consensus about how to take care of the sick and disabled and will be incorporated into the status quo. However, it is now equally likely that the Supreme Court's decision will affect the ability of activists to address health care disparities, and perhaps achieve other civil rights victories, because it limits Congress's ability to make incremental legislative changes and to enact national policy through cooperative federalism programs like Medicaid.