Women, newborns and the Affordable Care Act

In most states, before Jan. 1, 2014, U.S. women who needed individual health coverage for ordinary maternity care had great difficulty obtaining such coverage.

Aside from some health maintenance organizations, and some expensive maternity riders, most states had virtually no individual health coverage arrangements that would help with routine maternity costs.

Related: Employer in court over FMLA, maternity leave misunderstanding

Then, on Jan. 1, 2014, when the major provisions of the Affordable Care Act (ACA) took effect, maternity was deemed an essential health benefit.

The ACA required all new individual insurance policies sold on or after Jan. 1, 2014, to cover maternity care.

To get those individual major medical policies, women had to enroll in individual major medical coverage during an annual open enrollment period, or they had to have a “qualifying event,” such as loss of insurance due to job termination, marriage or divorce, that would give them access to a special enrollment period.

Some states, including Connecticut and New York, have legislated that becoming pregnant is also a qualifying event, meaning that becoming pregnant in those states gives a woman a chance to sign up for an ACA policy with maternity and newborn care benefits.

The ACA also gives a pregnant woman a chance sign up for coverage for her newborn. Even if a pregnant woman fails to get herself covered, she can still get a child-only policy after the birth of her baby. This provision is crucial in any case in which a newborn has medical complications, because neonatal intensive care typically costs $10,000 to $15,000 per day.

Although ACA-compliant policies must cover maternity care, they do not have to provide coverage for abortions and often are prohibited from doing so. “Twenty-five states restrict the availability of abortion coverage in Marketplace health plans. Two states restrict it entirely, and 23 restrict it to variations of the Hyde exceptions. The remaining states have no restrictions,” Amy Chen writes in a National Health Law Program article,

The ACA provides many other health benefits for women, including benefits for well-woman medical exams, breast cancer screening, domestic violence screening and counseling, and other preventive services.

Another ACA provision that helps women is the rule that keeps insurers from refusing to insure an individual just because the individual has a pre-existing medical condition. Before the ACA took effect, many people with serious pre-existing conditions could not get individual medical insurance plans, or they had to pay very high premiums. The Kaiser Family Foundation estimated that “27% of adults age 18-64 (52 million people) have a pre-existing condition that would have led to a denial of insurance in the individual market before the ACA. A larger share of nonelderly women (30%) than men (24%) have declinable preexisting conditions. The share of people with pre-existing conditions also varies by age, ranging from 15% for 18-24 year-olds to 47% for 60-64 year-olds.”

Why does this all matter?

The U.S. Supreme Court is now deliberating on a case, California v. Texas (Case Number 19-840), that threatens the survival of the ACA.

The court heard oral argument on the case in November.

If the Supreme Court holds that the ACA is unconstitutional in its entirety — which is still one possible outcome — all of the ACA benefits for individuals who need health insurance and health care services will go away.

More than 22 million people in the United States now have individual or family major coverage governed by ACA requirements. Elimination of the ACA could cost many of those people their health insurance. Further, the availability of affordable health insurance for people with pre-existing conditions, and for women who are pregnant or wish to become pregnant and their babies (and who cannot get insurance through employment group plans) will be eliminated.

Any Supreme Court decision that overturns or reduces the scope of the ACA could have a devastating impact on the health of American women, and devastating ramifications for women who want to get pregnant in order to start a family.

Victoria T. Ferrara is the founder and legal director at Worldwide Surrogacy in Fairfield, Connecticut. She is also a managing partner at Ferrara Law Group, which specializes in assisted reproduction technology law and surrogacy law.