Supremes Give Obamacare Challenge New Life

The U.S. Supreme Court is giving Jerry Falwell-founded Liberty University in Virginia another bite of the Obamacare apple.

The Court, which had previously shot down Liberty’s petition to find the Affordable Care Act (ACA)—Obamacare—unconstitutional, has ordered the Fourth Circuit Court of Appeals to rehear Liberty’s challenge.

The appeals court shot down Liberty’s challenge to the law last year, finding that the Anti-Injunction Act prevented Liberty from challenging the law until they were actually harmed. The Supreme Court considered the Act during arguments when it declared the ACA constitutional in June.

Abortion, Contraception and Religious Freedom

But on November 26, the Court reversed its previous dismissal of Liberty’s original appeal and ordered the Fourth Circuit to review whether or not Congress exceeded its power and violated religious freedoms by enacting insurance requirements for employers and individuals. The Fourth Circuit will also review Liberty’s contention that the employer mandate requiring companies with more than 50 employees to provide health insurance that falls within certain price parameters or pay a fine, improperly penalizes employers that do not cover abortion services.

The Obama administration did not oppose the lower court reviewing these unresolved issues not addressed in the Supreme Court ACA decision.

Law360 reports that religious objections to the ACA have centered heavily on disagreement with a requirement that most employers provide access to contraception under their benefit plans, and rulings have been mixed as courts gauge which employers qualify for religious exceptions.

This month, for example, an Oklahoma federal judge rejected a bid by Hobby Lobby Stores Inc. to stop the enforcement of the ACA’s contraception rule, finding that the for-profit Christian-affiliated compamy does not have free religious exercise rights under the First Amendment.

But last month, a Michigan federal judge preliminarily exempted an outdoor power equipment company called Weingartz Supply Co. from the same rule, finding that religious protections might be violated because the operation was founded as a family business and remains a closely held family corporation.

Michelle Browning Coughlin, a health care attorney at Bingham Greenebaum Doll, told Law360 that Liberty faces a tough path when it comes to overturning the employer mandate, and that its best hopes might rest with the Religious Freedom Restoration Act of 1993, which generally requires religious exemptions from laws unless compelling public interests outweigh such free-exercise concerns.

The Circuit Court could decide the case as early as this spring. That decision would likely be appealed to the U.S. Supreme Court by the losing side. Then the Supreme Court would have to decide whether to grant the appeal and schedule another round of arguments. That would likely not happen until the Court’s next term.