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The Affordable Care Act, Medicaid, and Child Welfare

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On June 28, 2012, the Supreme Court upheld the constitutionality of the Affordable Care Act (ACA). Chief Justice John Roberts joined the majority in affirming that the key provision in question--the so-called "individual mandate," which requires all Americans to buy insurance or pay a fine--amounted to a tax that the government had the power to impose, and deemed that the mandate could survive on that basis.

The minimum essential coverage provision of the ACA, the individual mandate, requires most people to maintain a minimum level of health insurance coverage for themselves and their tax dependents each month, beginning in 2014. Certain populations are exempt from the mandate, including individuals with a religious conscience exemption (only applies to certain faiths); incarcerated individuals; undocumented immigrants; individuals who cannot afford coverage (wherein the required annual premium would exceed 8% of their household income); individuals with a coverage gap of less than three months; individuals in a hardship situation (as defined by the Department of Health & Human Services (HHS); individuals with income below the tax filing threshold; and members of Indian tribes.

The decision did significantly restrict one major portion of the law: the expansion of Medicaid, the government-run health insurance program for low-income and disabled people. The ruling gives states some flexibility to curtail expansion of their Medicaid programs without paying the same financial penalties that the ACA calls for. The court noted that the federal government can withhold new money attached to the law if states don't meet its conditions, but can't revoke the federal funds that sustain existing programs.

While upholding the individual mandate provision within the ACA, the ruling noted that states did not have to expand Medicaid as Congress had intended--leaving ambiguity how coverage will be provided to roughly 16-17 million of the poorest people who would have been eligible under the new Medicaid expansion. Going forward, poor people who live in a state that chooses not to expand its Medicaid program will be unable to obtain either Medicaid or subsidies. To date, a handful of Republican governors have expressed opposition to expanding Medicaid, even though the federal government would pick up all the costs in the first few years and at least 90 percent of the expenses after that. Health care providers who treat low-income individuals strongly support the expansion of Medicaid coverage.

As of March 2010, states have been required to maintain eligibility for children on Medicaid and the Children's Health Insurance Program (CHIP) through 2019; adults on Medicaid will remain eligible until 2014, when coverage provided through new health benefit exchanges is expected to be available. This includes categorical eligibility for children in the foster care system.

Child Welfare and the Supreme Court Ruling on "Juvenile Life Without Parole"

On June 25, 2012, the Supreme Court issued its opinion in Miller v. Alabama and Jackson v. Hobbs, holding that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" The ruling was a five-to-four decision, split along ideological lines.

This decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), both of which acknowledge the diminished culpability of children. In the 2005 case, the court banned the death penalty for juveniles who kill, ruling that the Constitution's ban on cruel and unusual punishment must be seen through "evolving standards of decency that mark the progress in a maturing society." In 2010, the court stated that juveniles whose crimes did not include murder could not be sentenced to life in prison without the hope of release.

Writing for the majority, Justice Elena Kagan stated that "Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him--and from which he cannot usually extricate himself--no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him . . . And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it."

The Supreme Court states that a child is fundamentally different than an adult and that their circumstances must be taken into account. The ruling requires courts to consider the age and the background of the child.

This latest ruling overturns legislation in 28 states. Judges may still sentence juveniles convicted of murder to life sentences without the possibility of parole, but must take into account mitigating circumstances. There are approximately 2,500 inmates serving life-withoutparole sentences for murders committed before they were 18; of those, 2,000 were the result of mandatory sentencing. This decision requires the lower courts to conduct new sentencing hearings where judges will have to consider a child's individual character and circumstances.

Impact of Federal Immigration Actions on Child Welfare

Also during the week of June 25, the Supreme Court released its decision on Arizona's immigration law, SB 1070. The court reviewed four provisions of the law that are inspired by a theory of implementing heavy state immigration enforcement to encourage "self-deportation" of undocumented immigrants. Three of the provisions supplementing federal enforcement efforts were struck down, with reference made to the Supremacy Clause. The Court ruled that additional state penalties for (1) seeking work without legal documentation, (2) failing to carry registration, or (3) warrantless arrests for deportable activity without probable cause are all unconstitutional and infringe on federal immigration policy power.

On the remaining provision, the Court unanimously upheld Arizona's ability to mandate its enforcement officials to check for immigration status once someone is stopped or arrested for another crime. This provision is commonly known as "Show Me Your Papers, Please." It was reasoned that a mandate is in line with existing discretion afforded state and local law enforcement to inquire about immigration status. Notably, the Court left room for future challenges in case continued implementation of this kind of state law ends up violating the Constitution in practice.

The facilitation of enforcement that leads to detainment and deportation of caregivers leads to serious challenges for children in witnessing enforcement activities and experiencing separation. Even just the threat of enhanced enforcement is a problem, encouraging disengagement from community life and positive parental roles. Everyday activities such as taking children to school, enrichment activities, and health appointments may be deemed risky, leading parents to retreat from healthy involvement with their children. In the same way, these state laws foster mistrust of law enforcement and reluctance to report crimes like domestic violence and child maltreatment, as well as a similar weariness of social services and accessing needed social supports. The laws also intensify a general civic climate of stigma for mixed-immigration status families, burdening children with adult pressures that they did not cause and cannot resolve.

Tim Briceland-Betts is the Director of Policy and Federal Affairs at CWLA.

To comment on this article, e-mail voice@cwla.org.

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