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Health law challenge is back

A constitutional challenge to a key part of the new federal health care law that the Supreme Court did not examine in 2012 is back in an expanded form, and the part of that law that the Court did uphold is being tested with new arguments.  A new case also seeks, by a sideways maneuver, to be the first to put before the Court a test of the new birth control mandate in the law.

The Court has not yet considered any of the sequels that have been developing in the wake of its decision in National Federation of Independent Business v. Sebelius, so the new petition in Liberty University v. Lew (docket 13-306) will provide the first chance.  The petition was filed on September 5.  The Obama administration response is now due on October 9, but that deadline could be extended.

The new case poses a challenge, based on a variety of constitutional arguments, to the Affordable Care Act’s mandate that employers provide a minimum level of health insurance for their workers, or pay a federal penalty.  In 2012, the Court opted not to hear any challenge to that provision.  But Liberty University and two women challengers are also making religious freedom arguments against the individual insurance mandate that the Justices had upheld Term before last — arguments that were not before the Court then.

Liberty University’s lawyers had attempted to get their case before the Court previously, but the Court opted to hear and decide other petitions.  At the university’s request, the Court cleared the way for the Fourth Circuit Court, based in Richmond, Virginia, to take a new look at the university’s challenge.  That led to a new three-judge panel’s ruling last July, either rejecting all of the constitutional arguments or refusing to hear them.

In particular, the Circuit Court refused to rule on the validity of the birth control mandate — a provision that is being attacked in more than sixty lawsuits across the country.  Petitions growing directly out of that series of cases are expected to reach the Court soon, perhaps later this month.

Undaunted by the Circuit Court’s refusal to rule on the contraceptive mandate, Liberty University and the two women in the case have asked the Court to rule on it anyway, based on an argument that courts are supposed to review laws in the form that they existed at the time of the review.  The contraceptive mandate regulations were adopted by the Obama administration, to implement that part of the law, after Liberty’s case was developing in the courts.

The new petition raises five specific questions.  In the order listed in the petition, and paraphrased, these are the issues:

First: Is the employer mandate, requiring minimum levels of health insurance coverage for those on the payroll of a company with more than fifty workers, unconstitutional under the Commerce Clause.  The Fourth Circuit said no, differentiating between the way the Constitution treats business regulation from mandates governing individual behavior.  (In 2012, the Supreme Court had not ruled at all on the employer mandate.  It had found that the individual insurance mandate could not be justified under the Commerce Clause.)

Second: Is the employer mandate unconstitutional under the Taxing and Spending Clause.  The Fourth Circuit said no, concluding that the Supreme Court decision in 2012 upholding the individual mandate under Congress’s taxing power would protect the employer mandate, too.)

Third: Is the employer mandate unconstitutional under the First Amendment’s Free Exercise Clause or under the federal Religious Freedom Restoration Act, because it will work to require companies and employees to support insurance coverage of abortions in conflict with their religious beliefs.   The Fourth Circuit said no, concluding that the employer mandate is a neutral law toward religion.  (This is one of the questions that the petition seeks to expand to include a challenge to the contraceptive mandate, on the theory that some of the preventive care requirements in that mandate would lead to abortions.)  No religious freedom issues were before the Supreme Court in the 2012 case.

Fourth: Is the individual mandate unconstitutional because it forces individuals who are opposed to abortion to make a monthly payment to fund abortions.   The Fourth Circuit said no, concluding that the new health care law provides opt-out opportunities on abortion coverage.   The anti-abortion argument was not before the Court in the review of the individual mandate in 2012.

Fifth: Was the Fourth Circuit wrong in refusing to review the challenge to the birth control or contraception mandate in the ACA.  The university’s theory was that, at the time of the Fourth Circuit’s July decision, the contraception regulations had been issued and formed a part of the ACA.  The Fourth Circuit said Liberty had not raised that issue in the earlier round in its case, and, while the Circuit Court had the option of taking it up anyway, declined to do so.  (The Supreme Court does not often agree to rule on issues that lower courts have left unresolved.)

The Supreme Court will not examine the new petition until after the Obama administration has had a chance to file a formal response.  The Court has the discretion of granting or denying review.

Recommended Citation: Lyle Denniston, Health law challenge is back, SCOTUSblog (Sep. 10, 2013, 8:37 PM),