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Round Two for ACA?

Liberty University case may put health reform law before high court again


By Joe Carlson
Posted: February 2, 2013 - 12:01 am ET
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The U.S. Supreme Court may hear Round Two of legal arguments over the healthcare reform law as soon as late 2013, thanks to a revived constitutional challenge pending in Virginia.

The court late last year ordered the 4th U.S. Circuit Court of Appeals to reopen Liberty University v. Geithner, a case that will pose broad First Amendment challenges to recent HHS regulations on access to contraception, as well as constitutional arguments over the requirement that larger employers offer comprehensive insurance plans, including services and drugs to which they have religious objections.

When Liberty was ordered reopened last November, observers speculated the case would be limited to a single narrow question about the constitutionality of the so-called “employer mandate” to provide insurance.

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But lawyers say a recent order from the 4th Circuit makes clear that the appeals judges are opening the door to a host of legal challenges that hit a wide range of the most controversial topics in the law. A lawyer for Liberty University in Lynchburg, Va., said the challenges could strike at the heart of the financial mechanisms of the 2010 law and compel the Supreme Court to decide again whether the law is constitutional.

The Supreme Court last June famously upheld the reform law's requirement that nearly all Americans purchase health insurance, after a 5-4 majority ruled the mandate was essentially a tax on people who don't have coverage. But some four dozen cases challenging various aspects of the law are pending in federal courts across the country, many focused on regulations that HHS finalized in 2012.

Mathew Staver, dean of the Liberty University Law School and chairman of the law firm representing the school, Liberty Counsel, said the case may present a shortcut to the high court for recent controversies regarding religion and lingering issues the court did not address last year, such as whether Congress has constitutional authority to order employers with more than 50 workers to offer health insurance.

“We're much further along than the other lawsuits, and our case is a broader challenge to the law than those other lawsuits,” Staver said. “Those cases are all at an early stage. Some are at the preliminary injunction stage, or being decided on standing.”

A hearing is set for the case before the appeals court this May. If the 4th Circuit ruling is released in early summer, that could leave enough time on the Supreme Court's fall docket to present challenges to the contraception requirements and the individual and employer insurance, he said.

Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute, said those time estimates might be too aggressive. In his view, the case seemed more likely destined for a potential hearing before the high court early next year.

But the fact that the 4th Circuit may be soon issuing a decision on the merits of the constitutional questions at issue makes it a case worth watching.

“In a certain sense, Liberty has already litigated certain things and is familiar with the courts, so I'm curious about this one,” Shapiro said. “We'll see if the Supreme Court gives them another bite at the apple.”

The 4th Circuit in 2011 ruled that it could not render a decision on Liberty's lawsuit because of a federal law that bars courts from halting the collection of taxes. But the Supreme Court said in 2012 that the same law did not stop them from reviewing the ACA, which opened the door for Liberty to renew its challenge.

James Blumstein, a constitutional law professor in Vanderbilt Law School's Health Policy Center, said Congress may well have the power to force businesses to offer health insurance. For example, Congress has a long-established power to regulate minimum wages.

But it's not clear how the Supreme Court will rule on matters of religious freedom, he said. The Liberty case alleges that Congress violated the First Amendment's guarantee to free exercise of religion by financially punishing individuals and employers that refuse to help pay for other people's healthcare goods and services they find immoral, including birth control pills, sterilizations and—according to some critics—abortions.

Even though Liberty's 2010 lawsuit did not challenge the HHS rules—because they had not yet been written—that doesn't preclude the private Christian university from raising objections to them now.

“As long as the case is still alive, it can be amended to cover new laws or regulations that become effective. There is no impediment to that,” Blumstein said. “I do think the employer mandate and the religious freedom clause aspects of this are really interesting.”


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