Raising the Stakes for Nondiscrimination Protections in the ACA

In the struggle over the durability of the Affordable Care Act, defenders of the ACA stand guard at many fronts. A major contribution of the ACA to nondiscrimination law, however, appears increasingly vulnerable. The ACA established significant new nondiscrimination protections for patients under section 1557 and its implementing regulations. Several of these regulations—including protections on the basis of gender identity and pregnancy termination—are now under reconsideration at the Department of Health and Human Services, after a nationwide injunction lasting almost a year. Nondiscrimination laws matter, of course, because they promote equal access to health care. But focusing on discriminatory behavior alone is a narrow view of the purpose and potential of nondiscrimination rules—and underestimates the stakes of softening section 1557. To evaluate these protections, we must consider not only their impacts on discriminatory behavior but also their behavioral and attitudinal impacts on patients and communities. This is because supportive or stigmatizing rules can exert an expressive effect: laws communicate information about prevailing social norms, they give some norms greater authority by virtue of the state's support, and they can shape community values. Through these expressive impacts, nondiscrimination laws may affect not only discriminatory behavior in health activities but also the attitudes, beliefs, and decisions of people who are legally protected.