Regaining Our Footing on the Road to an AIDS-Free Generation

This blog post was co-authored by Scott Schoettes, Senior Attorney and HIV Project National Director; and Gregory R. Nevins, Counsel and Workplace Fairness Program Strategist

“[The tax] credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.” 

—United States Supreme Court in King v. Burwell

After all of the novel theories and nuanced legal arguments made by supporters and opponents of Obamacare over the many months this case has been pending, the Supreme Court’s decision in King v. Burwell essentially came down to this: denying health insurance subsidies to lower-income people in 34 states would have been so disastrous that Congress could not have intended that result when it passed the Affordable Care Act.  As the Court’s opinion pointed out, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” 

The briefing the Court received from many perspectives about just how “calamitous” it would be if these subsidies were stripped from lower-income people in over two-thirds of the states played a critical role in securing the victory achieved today.  And we made sure the concerns of the communities we represent were brought to the Court’s attention, by explaining just how disastrous it would be for people living with HIV, and for the public health more broadly in these 34 states, if those challenging the availability of the tax credits had prevailed. 

In one of two “friend-of –the-court” briefs addressing HIV-related consequences (the other coming from our friends at the Center for Health Law Policy & Innovation at Harvard University), Lambda Legal described the role that access to care plays in improving the lives of people living with HIV and combatting the HIV epidemic in communities most disproportionately affected.  In the states at issue in this case, many across the South and West, the problems created by lack of access to care have fallen most heavily on communities of color—particularly low-income and rural Blacks in the Southeast.  Today’s decision goes far in ensuring continuing access to care for people in these communities, and that deserves a celebration.

But we must keep our time of celebration short, because much work remains to be done on the road to access to quality care for all and an end to AIDS in this country.  At the top of the priority list remains expansion of Medicaid in the 22 states that have not yet opted to expand the program under the ACA.  Until we have brought all of the states on board with this common sense approach to improving the health and lives of their residents, we are not including many of those most vulnerable to HIV. 

Next, we must ensure that access to affordable care—and in particular to medications, including pre-exposure prophylaxis (PrEP)—for people living with and at greatest risk for HIV is a reality for all of those enrolled in private health insurance through the Affordable Care Act.  It is not really access to care if insurance companies are allowed to design benefit packages or engage in activities that make it prohibitively expensive or impossible for people living with HIV to obtain the care they need. 

Additionally, we must ensure that the safety net for people who are not eligible for ACA subsidies, such as undocumented immigrants, and the “wrap-around” services that allow people with other challenges to access the medical care available to them under the ACA, are as robust as ever.  A strong Ryan White HIV/AIDS Program is a critical component in fulfilling the promise of better health outcomes for people living with and at risk for HIV. 

And, of course, Lambda Legal will be here to assist in these battles and to lead the efforts against the stigma and various forms of discrimination that fuel the epidemic. Today, the country took an important step—or at least didn’t take any steps backward—on the road to an AIDS-free generation.  Tomorrow, we continue the fight with a renewed sense of energy and purpose!