By Rob Field
Think the legal assault on Obamacare ended with the Supreme Court decision last June? Think again.
The Supreme Court upheld Obamacare's most controversial provision, the mandate that all individuals maintain health coverage or pay a penalty. It ruled that the penalty is effectively a tax, which places it within Congress' broad taxing power.
But dozens of other lawsuits are pending. Many are on hold until the law fully takes effect in 2014. However, at least four could move forward before then, and courts have recently cleared two of them to proceed.
The first case that was cleared to move ahead was brought by Liberty University, an evangelical Christian school in Virginia. It challenged a mandate in the law that larger employers must offer health coverage to their workers. The suit claims that by requiring organizations to pay into the health care system, the law effectively forces them to subsidize abortions, which many other plans cover. This conflicts with its religiously based opposition to abortion, and therefore infringes its right to religious freedom under the first amendment to the Constitution.
Although the law contains an exemption from the mandate for religious organizations, Liberty still sees it as problematic. It claims that the exemption unconstitutionally entangles the government with religion by letting government officials decide which organizations are eligible.
An appeals court had put the case on hold until 2014. It reasoned that the employer mandate, like the individual mandate, is a tax, and federal law prohibits courts from considering the validity of new taxes until they have been levied and collected.
However, the Supreme Court ruled last week that the case can proceed right away.
The second case was brought by the Roman Catholic Archdiocese of New York and two other Catholic organizations. They challenged a provision in the law that requires health insurance policies to include coverage for contraception. As in the Liberty suit, this one claims a violation of religious beliefs and is one of several that have been brought on this ground.
Once again, the law exempts religious organizations from this obligation. Regulations implementing the exemption are in development but have not yet been issued. A federal district court in Brooklyn held that the suit does not have to wait for the regulations to be issued before it can be heard.
Two other lawsuits challenge the law on technical grounds. One, brought by the nonprofit Pacific Legal Foundation, asserts that it is invalid because it originated in the Senate. The Constitution specifies that tax legislation must originate in the House of Representatives.
The other was brought by Oklahoma Attorney General Scott Pruitt. He seeks to prevent the government from giving subsidies to some low-income individuals who purchase policies under the law. Obamacare authorizes financial help for people who obtain coverage through "an exchange established by the state." However, some states, like Oklahoma, may opt to let the federal government run their exchange for them. The suit claims that these exchanges are not truly state-run, so subsidies should not apply to policies sold through them.
If the subsidies are thrown out in states with federally run exchanges, the employer mandate would go with it. The penalty on employers who do not provide coverage is tied to the number of workers who turn to an exchange for subsidized coverage instead.
So, is Obamacare still in legal trouble? The answer is probably not.
The two suits that allege violations of religious freedom will have difficulty demonstrating harm, since the law specifically exempts religious organizations from the provisions in question. The government clearly has the power to decide when a religious claim is legitimate. It does so in many contexts, like granting tax exemptions.
And in order to succeed, these cases would ultimately have to survive a trip to the Supreme Court. What is the chance the justices would be willing to visit that hornet's nest of an issue a second time?