October 11, 2020

Sex-Based Discrimination in Healthcare Under Section 1557: The New Final Rule and Supreme Court Developments

By Brietta R. Clark, Professor, Loyola Law School, Los Angeles, CA, Elizabeth Pendo, Professor, Saint Louis University School of Law, Saint Louis, MO and Gabriella Garbero, Saint Louis University School of Law, Class of 2021, Saint Louis, MO

Introduction

One of the primary goals of the Patient Protection and Affordable Care Act (PPACA)1 has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups,2 including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment,3 which mandated women’s preventive healthcare to be covered without cost sharing, and the even broader prohibition of discrimination on the basis of race, color, national origin, disability, age, and sex in Section 1557 of PPACA4 also promote gender equity.    

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