Affordable Care Act Still in Flux As Challenges Arise Over Contraception Mandate: LXBN Roundtable

By | LXBN | December 4, 2012

Ealier this year on June 28th, in one of the most highly anticipated decisions in recent memory, the Supreme Court of the United States (SCOTUS) upheld the constitutionality of the Patient Protection and Affordable Care Act (ACA).  Supporters of the bill rejoiced, opponents denounced the decision, and “Obamacare” became a part of our national lexicon during the presidential campaign as Gov. Mitt Romney and Co. promised to repeal the mammoth piece of legislation.  Five months later, as more provisions become effective and the legal challenges continue to pile up, the Supreme Court ordered the Fourth Circuit Court of Appeals to reconsider a suit against the ACA brought by Liberty University. (Liberty University v. Geithner)(PDF)

At the center of this dispute is the contraceptive mandate, which applies to all employers with the exception of churches and “houses of worship.”  This mandate expressly requires all health plans cover the cost of contraceptives approved by the Food and Drug Administration (FDA).   As opposition to the ACA grew, this section of the law found itself in the middle of the battle.

The fight reached a fevered pitch when on February 16th, 2012, Sandra Fluke, then a law student at Georgetown, spoke before a House oversight committee where she testified that the cost of contraceptives was, at best, prohibitive.  Political pundits sounded off on the aspiring lawyer. Rush Limbaugh called her a “slut” and a “feminazi” (Limbaugh later apologized, saying his “choice of words was not the best”).  Good or bad, Fluke became the poster-child in the fight for and against the contraceptive mandate.

The Supreme Court’s decision to uphold the ACA seemed to quell most of the rancor, but the debate hardly went away.  On October 31st, the United States District Court for the Eastern District of Michigan Southern Division granted an employer’s request for a preliminary injunction under the Religious Freedom Restoration Act.  With more on the details, here’s Richard Cohen, a partner with Fox Rothschild and editor of the firm’s Employment Discrimination Report:

This week a judge in Michigan temporarily enjoined the government from enforcing this rule against Weingartz Supply Company, which is a self-described “secular, for-profit, family owned and operated corporation that sells outdoor power equipment and employs over 170 employees.” The company owner, Daniel Weingartz, is a practicing Catholic, and contended that it is contrary to Catholic doctrine to use, pay for, or support the use of contraception, and that having his company provide or participate in health insurance that includes providing contraceptives (or else incur a penalty) violates his sincerely-held religious beliefs and substantially burdens his free exercise of religion.”

A month later, Cohen was back at his computer typing about a decision by an Oklahoma federal court that was “directly at odds” with the Michigan court’s ruling:

“An Oklahoma federal court has just issued a decision directly at odds with the Michigan one, demonstrating the split among federal courts over the rights of for-profit, secular employers to challenge the validity of the ACA’s women’s preventive care services mandate.  The Court denied a similar injunction motion filed by Hobby Lobby Stores and Mardel , both for-profit, secular corporations owned by a family management trust whose trustees are practicing Christians.

The Court held that Hobby Lobby and Mardel, as secular, for-profit companies, do not satisfy the ACA’s definition of a “religious employer,” and concluded that plaintiffs had no likelihood of succeeding on the merits of their claims.”

These two cases represent a small section of the over 150 challenges to the ACA’s contraceptive mandate brought by businesses, hospitals, universities, and schools.  With pressure rising, the Supreme Court of the United States stepped into the fray (again) last week, asking the Fourth Circuit to reconsider a similar challenge.  From Steve Delchin on the Sixth Circuit Appellate Blog:

“Earlier today, the U.S. Supreme Court ordered the Fourth Circuit to reconsider a constitutional challenge to the Patient Protection and Affordable Care ActPublic Law 111-148, brought by Liberty University.  The Christian college, one of the largest in the country, argues that the health care statute’s mandate requiring employers to provide health care coverage for contraception and abortifacients violates its constitutional right to the free exercise of religion.”

As John LeBlanc wrote on the Life, Health and Disability Insurance Blog, the Fourth Circuit had previously dismissed the case on jurisdictional grounds:

“The Fourth Circuit had previously held that the mandates were “taxes,” but dismissed the case for lack of jurisdiction on the grounds that the federal Anti-Injunction Act did not permit the federal courts to consider the legality of the tax until it went into effect. Because it dismissed the case on jurisdictional grounds, it did not rule on the merits of the religious freedom and employer mandate arguments. Liberty University sought review in the Supreme Court, which was denied.”

As LeBlanc goes on to write, the Supreme Court was able to breath life back into the case because the Department of Justice did not oppose the University’s motion for pre-hearing:

“In NFIB v. Sebelius, the Supreme Court unanimously held that the Anti-Injunction Act did not preclude the federal courts from deciding the constitutionality of a “tax” only after it goes into effect. Liberty University therefore filed a motion for rehearing, and the Supreme Court ordered the Department of Justice to file a response. In a somewhat surprising move, the DOJ did not oppose Liberty University’s motion for pre-hearing, paving the way for today’s ruling from the Supreme Court.”

All of this comes at a time when more parts of the ACA are becoming actualized and businesses are preparing for the full impact of the law.  Just this past week, the  Centers for Medicare & Medicaid Services, the Department of Labor, and the Department of the Treasury issued two new rules and a notice of rulemaking for the ACA.  The Department of Health and Human Services joined in on the fun with three new rules of their own.  As many LXBN members have noted, with President Obama winning the election, it’s time for everyone to accept that the ACA will, in some form or another, be the law of the land.  While challenges like the ones in Michigan, Oklahoma, and Liberty University v. Geithner will undoubtedly continue, vital aspects of the law like the individual mandate and the guidelines governing the coverage of those with pre-existing conditions will most likely persist.  We’re in this for the long haul.

To read more Affordable Care Act coverage, analysis, and developments check out LXBN’s tagged page on the health care reform law.

Photo Credit: SEIU International, Flickr