ACLU: County budget plan could make public health employees 'immigration law enforcers'

February 9, 2009

Sacramento County Board of Supervisors
700 H St., Ste. 1450
Sacramento, CA 95814

Dear Sacramento County Board of Supervisors:

The Sacramento County Chapter of the American Civil Liberties Union strongly opposes changing the eligibility requirements of applicants for the County Medically Indigent Services Program to require documentation of American citizenship and/or certain documented status. While we recognize that economic conditions have placed severe budget pressures on the county, reacting by denying medical services to some non-citizens is both constitutionally problematic and bad public health policy.

Discriminating against non-citizens raises constitutional concerns because the Fourteenth Amendment to the U.S. Constitution provides that no person shall be denied the equal protection of the laws. Using that equal protection guarantee, the U.S. Supreme Court found local laws that discriminate against non-citizens are subject to "strict scrutiny" and has struck down laws that discriminate on the basis of citizenship status in the provision of these types of government benefits. See Graham v. Richardson, 403 U.S. 365 (1971). In the 1990s, federal litigation blocked implementation of California's Proposition 187 based on similar reasoning. Moreover, the passage of the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) authorizing states to make decisions regarding the provision of benefits to certain non-citizens did not resolve the constitutional issues. In fact, New York courts struck down that state's implementation of PRWORA denying government benefits to non-citizens as a violation of equal protection. See Aliessa v. Novello, 96 N.Y.2d 418 (2001).

More recently, while two of the three judges in the Tenth Circuit Court of Appeals case that reviewed Colorado's implementation of PRWORA denying non-citizens benefits did find that program to be constitutional, the third judge argued the majority result could not be reconciled with the controlling U.S. Supreme Court precedent, writing "[a]lthough the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they remain, and the terms and conditions of their naturalization, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause." See Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004) (Henry, J., dissenting)(quoting Graham, 403 U.S. at 382). Thus, despite the possible political appeal of such proposals, cutting services by delving into such an unsettled area of constitutional law is not the surest way to alleviate the county's budget problems.

In fact, because of the state and federal legal requirements to provide emergency medical services to all residents of the county, the removal of this item from the county's budget will most likely result in the people of the county paying more to treat the same medical conditions when they become more advanced and require costlier emergency care. The federal Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals with emergency departments to provide medical screenings to everyone regardless of citizenship status and also requires them to provide services necessary to stabilize patients suffering from emergency conditions. See 42 U.S.C. § 1395dd. California state law also puts similar requirements on the counties as the health care provider of last resort for the indigent. See California Welfare and Institutions Code § 17000 et seq. While the burden of providing some of these costlier emergencies services may initially fall on the private health providers who run some emergency care facilities, those higher costs are ultimately passed on to the people of the county in the form of higher health insurance premiums. When costlier emergency care is provided in government run facilities like those in the UC Davis system, the higher costs are paid out of other government funds. In either case, this supposed cost cutting measure will most likely result is higher costs for the people of the county

In addition to the higher ultimate financial price of denying these medical services to non-citizens, the price paid in undermining the public health in Sacramento County could be even greater. Under this proposal, non-citizens would be denied essential preventive services, like vaccinations, that are designed to keep us ALL safe. During potentially dangerous outbreaks, it is in the interest of the general public to make sure that prevention and treatment are available to everyone. By excluding non-citizens from this type of care, this proposal seriously endangers the public health.

Finally, this proposal would force public health employees, like doctors, nurses, and emergency personnel, to become immigration enforcers, requiring them to spend valuable time and resources checking documents rather than providing services. Most Americans don't carry documents showing that they belong to their own country, and are likely to face delays when seeking medical care. Similarly, legal immigrants have a variety of statuses under dozens of different visa categories. Some immigrants, for example, enter the country unlawfully and apply for refugee status and receive temporary status from the United States Citizenship and Immigration Services while their permanent status is being reviewed. It is unwise and unfair to expect essential medical personnel to implement this complex area of law.

For these reasons, the Sacramento County Chapter of the American Civil Liberties Union strongly opposes denying medical services to some non-citizens as both constitutionally problematic and bad public health policy. We urge the Sacramento County Board of Supervisors to reject this proposal and find another way to address the county's serious budget problems.

Sincerely,

Jim Updegraff, Chair
On Behalf of the Sacramento County Chapter of the ACLU