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The Statute Whose Name We Dare Not Speak: Emtala and the Affordable Care Act

The following article, written by David Koeninger (ABLE), appeared the in Winter 2013 edition of the Journal of Gender, Race and Justice. A portion of the introduction is posted below.

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.