Despite the fact that the re-election of President Obama secured the political future of the Patient Protection and Affordable Care Act (PPACA) and full repeal of the law is currently officially off the table, that doesn’t mean that the law’s future in the courts is clear. Most recently, the Supreme Court ordered the 4th Circuit Court of Appeals to hear a challenge to the law being brought by Liberty University this past Monday. Liberty University, which is located in Lynchburg, Virginia and was founded by the Reverand Jerry Falwell, is challenging the individual mandate aspect of PPACA from a religious perspective saying that it is in violation of the school’s religious freedoms to be forced to purchase an insurance plan that covers family planning and birth control without a co-pay. The school also claims that the employer mandate provisions are unconstitutional, because Congress overstepped its bounds in establishing that requirement. While there is still no guarantee that the case will survive the appeals court, or be reviewed by the Supreme Court in the future (late spring at the earliest), the case keeps legal challenges to PPACA in the spotlight.
The advancement of the case also brings hope to other challengers of PPACA and the individual mandate. The 4th District Court of Appeals typically moves relatively quickly, with oral arguments to possibly be heard as early as the spring. A representative from Liberty University has already stated that even if the case is struck down in the 4th District Court, their ultimate goal is to have their case heard in the Supreme Court. The 4th District Court is considered to be one of the most liberal courts in the country, which should provide an interesting case given Liberty’s conservatism. If the case does get struck down in the 4th District Court, Liberty University would have the opportunity to appeal its case to the Supreme Court.
Last month, the Department of Justice said that while Liberty’s case “lacked merit” it would not try to block the case from going to court. In a brief by Solicitor General Donald Verrilli, it was noted the government’s reason for not blocking the individual mandate challenge this time around is that issues weren’t fully aired out during last summer’s arguments.
Liberty’s case is just one of many challenges to PPACA’s employer contraceptive coverage requirement. Because there are so many, it is likely that at least one of them will make it to the Supreme Court. In the event that the High Court ultimately rules in favor of one of these challengers, the issue of the law’s lack of a severability clause may rise again. It was rendered moot when the Supreme Court upheld the individual mandate provisions under Congressional taxing authority in NFIB v. Sebelius this past summer, but in a new case the issue may be revisited.