ISSUE BRIEF
King v. Burwell: Affordable Coverage for
Women at Stake
JANUARY 2015
The U.S. Supreme Court has agreed to hear the case King v. Burwell, which will determine
whether premium tax credits, as defined by Section 36B of the Internal Revenue Code, may
be issued to consumers who purchase health coverage in the federally facilitated marketplace
(FFM). Currently 37 states offer qualified health plans through the FFM.1 The Court’s
decision will have a profound effect on the future of the Affordable Care Act (ACA) and on
whether millions of Americans will have access to affordable health coverage and care.
Background
The fundamental issue in King v. Burwell is whether the Internal Revenue Service (IRS) may
make federal tax credits, as defined in Section 36B of the Internal Revenue Code, available to
taxpayers who purchase health insurance in the FFM. The litigants’ challenge primarily
rests on the fact that Section 36B states that the tax credits are available to taxpayers
enrolled in a health plan “through an Exchange established by the State under § 1311”2 of the
ACA. The question is whether this wording precludes making credits available to individuals
enrolled in coverage purchased in the FFM.
The plaintiffs in King are Virginia residents who
argue that premium tax credits should be
available only in states that run their own
marketplaces. They contend that the language
in question does not allow the IRS to grant tax
credits to residents of FFM states. The U.S.
Department of Health and Human Services
counters that the ACA does establish premium
subsidies for FFM enrollees, and that any other
reading of the statute would entirely frustrate
the purpose of the ACA.
Eliminating subsidies “would make
the individual insurance market
unstable and potentially unworkable
in federal marketplace states.”
— Larry Levitt and Gary Claxton, Kaiser Family
Foundation. The Potential Side Effects of Halbig.
Both the Circuit Court for the Eastern District of Virginia and the Fourth Circuit Court of
Appeals have ruled in favor of the government in this case, stating that premium tax credits
are available to enrollees who purchased health coverage in the FFM. Similar cases are
pending before the D.C. Circuit Court of Appeals, as well as the Seventh and Tenth Circuits.
The Supreme Court will hear oral arguments in King v. Burwell on March 4, 2015, and is
expected to issue its decision in the late spring or summer.
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Impact: Millions Are Currently Enrolled in Subsidized
Coverage through the FFM
In the first ACA enrollment period in 2014, more than eight out of ten FFM enrollees
qualified for premium tax credits,3 and because women comprised a majority of FFM
enrollees – 55 percent4– women may be disproportionately affected if those subsidies are
taken away. In 2016, the first enrollment year that would be affected by the Court’s decision
in King, 37 states are expected to participate in the FFM, rather than create their own statebased marketplaces.5 Experts estimate that just over 13.4 million enrollees from those 37
states will use federal premium tax credits to pay for FFM coverage in 2016.6
Impact: The Importance of the ACA and Subsidies for
Women
Preventive Care Without Cost Sharing
Thanks to the ACA, women are treated more fairly by insurers and have expanded access to
affordable coverage and care.7 Women who enroll in a marketplace plan have guaranteed
access to coverage that offers a comprehensive set of benefits, including maternity care and
other key women’s health services. For example, the law requires that plans sold in state and
federal marketplaces cover women’s preventive care services without cost sharing. The nearly
three million women8 who purchased FFM plans during the first enrollment period have
coverage, with no cost sharing, for:9
 Breastfeeding supplies, counseling and support
 Well-woman visits
 Contraception
 Tobacco use intervention
 Osteoporosis screenings
 Screenings and counseling for

Pregnancy-related conditions such as anemia and gestational diabetes

Breast and cervical cancers

Sexually transmitted infections

Domestic and interpersonal violence
The Benefits of Affordable Coverage
Without health coverage, women are more likely to forego care because of cost.10 Premium tax
credits available under the ACA are particularly crucial to women, who tend to live longer,
have unique reproductive health needs, and visit their care providers more often, as
compared to men.11
Health coverage, made affordable for many women through premium subsidies, gives women
greater flexibility, economic security, independence and protection. Prior to the establishment
of the marketplace, a majority of women were insured as employees or dependents.12 Though
NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES | ISSUE BRIEF | KING V. BURWELL: AFFORDABLE COVERAGE IS AT STAKE
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women are less likely than men to be covered by their own employers,13 some studies have
indicated that women, more than men, feel locked into jobs because of the health coverage
benefits their employers provide.14 Now, however, thanks to the marketplace, employees are
no longer reliant on employers to provide access to and financial support for health care
coverage. Employees now have the flexibility to leave jobs or seek out new opportunities
without fear of losing coverage completely.15 Additionally, before the marketplaces launched,
women were more likely than men to be covered as dependents on their spouses’ plans.
Without the option of the marketplace, these women were more vulnerable to losing coverage
as a result of divorce or spousal death.16
Subsidies Aren’t the Only Benefits at Stake
If the plaintiffs in King prevail, the impact will touch more than the 13.4 million Americans
who are estimated to be eligible for – and will lose – subsidies for coverage purchased through
the FFM in 2016. If subsidies are no longer available in the federal marketplace, the
employer mandate and the individual mandate may also be negatively affected.17 Penalties
under the employer mandate are only triggered if an employee is eligible for subsidies and
enrolls in a marketplace plan. Thus, a Supreme Court ruling that no one in an FFM state is
eligible for subsidies could remove a key incentive for employers to offer coverage to more full
time employees.18
Moreover, because the ACA exempts an individual from the individual mandate if the cost of
coverage exceeds 8 percent of income, estimates indicate that approximately 83 percent of
individuals who were eligible for subsidies for FFM coverage would become exempt from the
mandate if those subsidies were no longer available.19 In this scenario, it would likely be
harder to attract younger, healthy people into the marketplace – a development that, in turn,
would cause premiums to increase significantly for the higher-needs, higher-risk enrollee
population.20 Significant premium increases in affected states could lead to a “death spiral” of
healthy people leaving the market, resulting in even greater premium increases.21
NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES | ISSUE BRIEF | KING V. BURWELL: AFFORDABLE COVERAGE IS AT STAKE
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1 Ala., Alaska, Ariz., Ark., Del., Fla., Ga., Ill., Ind., Iowa, Kan., La., Maine, Mich., Miss., Mo., Mont., Neb., Nev., N.H., N.J., N.M., N.C., N.D., Ohio, Okla., Ore., Pa., S.C., S.D., Tenn., Texas,
Utah, Va., W.Va. Wis., Wyo. Kaiser Family Foundation. (2014, Nov.). State Health Insurance Marketplace Types, 2015. Retrieved from http://kff.org/health-reform/stateindicator/state-health-insurance-marketplace-types/.
2 26 U.S.C. 36B(b)(2)(A). 26 U.S.C. 36B(c)(2)(A)(i).
3 Dept. of Health and Human Services. (2014, May). Health Insurance Marketplace: Summary Enrollment Report for the Initial Annual Open Enrollment Period (p. 19). Retrieved
from http://aspe.hhs.gov/health/reports/2014/marketplaceenrollment/apr2014/ib_2014apr_enrollment.pdf.
4 Ibid.
5 Kaiser Family Foundation. (2014). Map: How Many Americans Could Lose Subsidies If the Supreme Court Rules for the Plaintiffs in King vs. Burwell? Retrieved from
http://kff.org/interactive/king-v-burwell/. Altman, Drew. (2014, Nov. 19). How 13 Million Americans Could Lose Insurance Subsidies. The Wall Street Journal. Retrieved from
http://blogs.wsj.com/washwire/2014/11/19/how-13-million-americans-could-lose-insurance-subsidies/.
6 Ibid.
7 National Partnership for Women & Families, (2014, Sept.). Factsheet: Why the Affordable Care Act Matters for Women: Summary of Key Provisions. Retrieved from
http://www.nationalpartnership.org/research-library/health-care/summary-of-key-provisions.pdf.
8 See note 3.
9 U.S. Centers for Medicare & Medicaid Services. Preventive Health Services for Women. Retrieved from https://www.healthcare.gov/preventive-care-benefits/women/.
10 Khazan, Olga. (2014, Feb. 11). How Women Get More Than Men Do From Obamacare. The Atlantic. Retrieved from http://www.theatlantic.com/health/archive/2014/02/howwomen-get-more-than-men-do-from-obamacare/283728/.
11 Ibid (citing the Kaiser Family Foundation Director of Women’s Health).
12 Kaiser Family Foundation. (2013, Aug. 29). Health Reform: Implications for Women’s Access to Coverage and Care. Retrieved from http://kff.org/report-section/health-reformimplications-for-womens-access-to-coverage-and-care-issue-brief/.
13 Kaiser Family Foundation. (2013, Nov. 6). Women’s Health Insurance Coverage. Retrieved from http://kff.org/womens-health-policy/fact-sheet/womens-health-insurancecoverage-fact-sheet/.
14 See note 10.
15 Ibid.
16 See note 13. See also note 10 (recognizing women’s greater freedom to divorce now that they do not have to rely on spouses for health care coverage).
17 Jost, Timothy. (2014, Nov. 7). Implementing Health Reform: Supreme Court Will Review Tax Credits In Federal Exchanges. HealthAffarisBlog. Retrieved from
http://healthaffairs.org/blog/2014/11/07/implementing-health-reform-supreme-court-will-review-tax-credits-in-federal-exchanges/.
18 Levitt, Larry and Claxton, Gary. (2014, July 31). The Potential Side Effects of Halbig. Kaiser Family Foundation Publication. Retrieved from http://kff.org/healthreform/perspective/the-potential-side-effects-of-halbig/. Note that this analysis is based on Halbig v. Burwell (D.C. Cir. 2014), which is “a materially identical case” to King v.
Burwell. Brief for Respondents at 11, King v. Burwell, No. 14-114 (Oct. 3, 2014).
19 Ibid.
20 Ibid.
21 Ibid.
The National Partnership for Women & Families is a nonprofit, nonpartisan advocacy group dedicated to promoting fairness in the workplace, access to quality health care and
policies that help women and men meet the dual demands of work and family. More information is available at www.NationalPartnership.org.
© 2014 National Partnership for Women & Families. All rights reserved.
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