By Rebekah Diamond. Massachusetts is the nation’s leader in universal healthcare. Since passage of the Affordable Care Act in Congress, many have turned to Massachusetts to study its first-in-the-nation universal health care insurance program. Yet, despite the state’s purported mission to mandate insurance for all, coverage is not quite universal. The state excludes from coverage lawful resident aliens. In 2009, the Massachusetts legislature passed an appropriations bill declaring immigrants who were here legally but not yet citizens ineligible for the state’s Commonwealth Care health insurance. This law was written pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), a federal act which limits federal benefits to immigrants in order to foster self-sufficiency, an act which states are not compelled to follow. This law also affected those legal immigrants who were enrolled in Commonwealth Care at the time of its passage, limiting their benefits and forcing them to bear more costs in the less comprehensive “Bridge Program.” This law currently affects approximately 40,000 legal resident aliens in Massachusetts.
After the restrictive bill passed, there was a concerted effort to solve the problem through negotiations with various stakeholders. That effort failed, leading Health Law Advocates, a non-profit health law firm, to file suit on behalf of those excluded. The suit claimed the law was unconstitutional because it violated the equal protection clause of the Massachusetts Constitution. In 2011, the Supreme Judicial Court made its ruling on the threshold issue: what level of judicial scrutiny would apply to this law? Writing for the majority, Justice Francis X. Spina found that the exclusion of this immigrant class amounted to discrimination based upon national origin, a protected class under the Massachusetts Constitution. The law would be unconstitutional unless it could be demonstrated that it furthered a compelling state interest in a narrowly tailored fashion. The opinion pointed out that while the federal government has the ability to discriminate in this way, as they did by limiting federal benefits in PRWORA, that the state of Massachusetts does not, so a higher standard must be applied. This was a major win for the plaintiffs, as this high standard is rarely met.
The Commonwealth now argues that there is indeed a compelling state interest – federal immigration policy. It says that in adopting the language of PRWORA, Massachusetts is advancing federal immigration policy of self-sufficiency for immigrants looking to become citizens. What is problematic about this professed compelling state interest is that it was never mentioned before, when this bill was debated and passed into law. What’s more is that this immigration policy was introduced three years after universal healthcare was implemented.
When the state law was passed, the immigrant class at issue was costing the Commonwealth almost three times as much to insure as others because the immigrants were ineligible for federal funding under PRWORA. In this uncertain economic time it seems likely that this appropriations bill was passed for fiscal rather than for immigration purposes. To suggest otherwise seems disingenuous, unfit to pass the highest and most protective level of judicial scrutiny.
It is also unclear why federal immigration policy would be a compelling interest for the Commonwealth of Massachusetts. In fact, it is worrisome to think that immigration policies could be implemented at a state level. Immigration is an issue over which Congress has plenary regulatory power. It is unsettling that a state legislature could begin to take immigration policy and national security into its own hands when their budget is tight, proclaiming constitutionality of their actions based upon stated federal policy. It is up to the judiciary, and not the legislature, to determine whether or not a law passes constitutional muster. This, after all, is the reason we have a system of checks and balances.
Moreover, the restrictive law passed in 2009 could cost the Commonwealth more money than it saves. These individuals are still entitled to emergency services. Not only does Massachusetts bear the burden in paying for these expensive services, but also hospitals incur huge losses since the state’s payments to them are minimal. Thus, depriving legal immigrants of preventative care is eventually more costly. While the defense argues that PRWORA is the controlling federal policy, could one not argue that the Affordable Care Act, which tries to contain costs by promoting preventative care and limiting emergency room visits, is also federal policy? In 2014 the Affordable Care Act will encompass this plaintiff class, muddying the supposed direct federal policy the defense claims to be borrowing from PWRORA.
To me, the restrictive law is unconstitutional and a blight on the state’s progressive record in universal healthcare in this country. How can federal immigration policy be a compelling interest for the Commonwealth? How can a policy of self-sufficiency result in a sicker, more expensive population of people? This is a class of individuals who work, pay taxes, and who could be called into military service. Do they not deserve basic rights to proper health care?
Late this summer final briefs were filed to the Supreme Judicial Court on whether the law passes a heightened level of judicial scrutiny. Oral arguments were heard on October 6, 2011. Hopefully, the Supreme Judicial Court will find this law unconstitutional under the Massachusetts Constitution. It will then be up to the legislature to fight the cost containment battle of health care in a nondiscriminatory way. Balancing the state budget should not come at the expense of legal immigrants.
Rebekah Diamond was a Donoghue, Barrett & Singal Public Interest Health Law Fellow in Summer 2011. She is pursuing a juris doctorate at Suffolk University Law School. She received a B.A. in Political Science from The University of Rochester. As a Donoghue, Barrett & Singal Fellow, Diamond worked at Health Law Advocates, a non-profit health law firm in Boston . The opinions in this article belong solely to the author.
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