William & Mary Journal of Race, Gender, and Social Justice
Abstract
When the Patient Protection and Affordable Care Act passed, it offered a broad promise to provide access to quality care on a nondiscriminatory basis. To achieve nondiscrimination, Congress included Section 1557, which integrated the nondiscrimination protections granted under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Section 504, and the Age Discrimination Act. The language of the statute has proved that the section cannot achieve its broad promise. Covering only intentional discrimination and usually interpreted to divide the standard so that intersectional discrimination cannot be redressed, Section 1557 fails to address discrimination in a way that could effectively reduce health disparities and improve overall health outcomes. While it is possible to interpret the statute to provide for an intersectional claim, the limit to only intentional discrimination narrows the scope such that expanding Section 1557’s reach is necessary but not sufficient to improve the health of marginalized communities. As evidenced during the COVID-19 pandemic, implicit bias and disparate impact discrimination has a real impact in actual life and death healthcare decisions, for which the consequences must have an available remedy. Section 1557 opens the door to a broader approach but remains passive as a ‘nondiscrimination’ clause. Any further efforts to improve health outcomes and reduce health discrimination must take an active and intersectional ‘antidiscrimination’ approach.