Hours after the University of Notre Dame filed a religious challenge
to the U.S. health-care overhaul in Indiana federal court, a judge in
Washington heard arguments in a lawsuit assailing tax provisions of the
statute.
The cases underscore the persistent and diverse nature of legal
attacks on the Affordable Care and Patient Protection Act even as the
Obama administration struggles to fix bugs in HealthCare.gov, the online
marketplace for health insurance created by the measure.
Obamacare litigation continues partly because questions about its
legitimacy as a piece partisan legislation are unresolved, said Ilya
Shapiro, a senior fellow in constitutional studies at the libertarian
Cato Institute in Washington and an opponent of the act. The statute
passed Congress without Republican support in either the House or
Senate.
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It doesn’t matter what motivates the plaintiffs bringing those
challenges as long as “their legal arguments are sound, because that’s
what the courts are looking at,” Shapiro said.
The suit in Washington, in which a federal judge yesterday heard
arguments for an immediate verdict, was brought by seven individuals and
businesses from six states. At least three similar complaints have been
filed in Oklahoma, Virginia and Indiana. All challenge some of the
federal government’s authority to offer tax credits to subsidize health
insurance for poor people under Obamacare.
Catholic Teaching
The complaint Notre Dame filed yesterday, alleging that the law’s
requirement health plans cover birth control violates Roman Catholic
teaching, is a re-filing of a lawsuit dismissed in December on
procedural grounds.
The Notre Dame case is among 86 lawsuits attacking Obamacare on
religious grounds, according to Erin Mersino, trial counsel at the
Thomas More Law Center, of Ann Arbor, Michigan, a Christian-based public
interest law firm.
Forty-one of the cases involve primarily Catholic nonprofit groups
such as Notre Dame and take issue with the birth control mandate,
Mersino said. The other 46 were brought by for-profit entities whose
owners argue the contraception provision violates their religious
freedom, she said.
The U.S. Supreme Court on Nov. 26 agreed to hear two cases from the
for-profit group involving the craft store chain Hobby Lobby Stores
Inc., and Conestoga Wood Specialties Corp. They, too, claim an exemption
from covering employees’ birth control on religious grounds.
First Look
The dispute will be the court’s first look at President Barack
Obama’s biggest legislative accomplishment since a majority of the
justices upheld the core of the law in 2012.
The court on Dec. 2 declined to hear an appeal by Liberty University,
a Virginia school founded by the late evangelical preacher and activist
Jerry Falwell, which lost a lower-court case arguing the law’s employer
mandate exceeded Congress’s power over interstate commerce.
The suits by nonprofit religious groups are less advanced in the
courts because the Obama administration delayed the birth control
mandate for a year as it sought an accommodation with them.
While the religious cases have drawn attention because of their
number and high-profile plaintiffs such as Notre Dame and the
Archdiocese of Washington, they don’t threaten the viability of
Obamacare, according to Timothy Jost, a law professor at Washington and
Lee University in Lexington, Virginia, and a consumer representative to
the National Association of Insurance Commissioners.
“They’re challenges to one particular part of one particular
regulation,” Jost said. “They’re very important cases, but I don’t think
they mean much for the Affordable Care Act.”
The tax cases, involving federal subsidies to people shopping for
insurance on government-run marketplaces, or exchanges, present a
“significant challenge” to the law because, if successful, they could
prevent millions of people from buying coverage, Jost said.
Plaintiffs in those suits argue the language of the health- care
legislation allows subsidies only for people using state- run exchanges,
not the federal government’s.
Thirty-three states, including Ohio, Texas and Florida, declined to set up exchanges.
“No legitimate method of statutory construction would interpret the
phrase ‘established by the state’ in the ACA’s subsidy provisions to
mean ‘‘established by the state or federal government,’’ according to a
brief filed by plaintiffs in the case argued yesterday in Washington.
Congressional Intent
That argument will probably fail because courts look on laws as a
whole, not narrow slices of language, and ‘‘it’s clear Congress meant
for the federal exchanges to be treated the same as the states’
exchanges,” Jost said.
Shapiro, of the Cato Institute, said the tax credit cases could “have legs.”
“There’s a very strong technical argument that the challengers are
bringing,” Shapiro said. “It’s not some sort of glitch or scriveners’
error. Congress wanted to incentivize states to create these exchanges.”
At least one other case challenges the Affordable Care Act on the
grounds that it violates the Constitution’s origination clause, which
requires revenue-raising measures to originate in the House, not the
Senate.
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U.S. District Judge Beryl Howell in Washington in June rejected that
argument as made by Matt Sissel, an Iowa man, concluding the challenged
bill originated in the House even if it was completely rewritten by the
Senate.
The cases are Notre Dame University v. Sebelius, 3:13- cv-01276, U.S.
District Court, North District of Indiana (South Bend), and Halbig v.
Sebelius, 13-cv-00623, U.S District Court, District of Columbia
(Washington).
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