President Obama’s national health care law will be back at the U.S. Supreme Court by next fall, according to a lawyer for Liberty University, which is challenging the constitutionality of the law on different grounds from the recent major health care suit.
Earlier on Monday, the Supreme Court ordered the Fourth Circuit Court of Appeals in Richmond, Virginia to rehear a suit brought by Liberty University challenging the constitutionality of Obamacare.
“We’ll probably be back before the Supreme Court in fall of 2013, about a year from now,” Mathew Staver, the lawyer representing Liberty University, predicted in a phone interview with the Washington Examiner.
When the Supreme Court upheld the law’s individual mandate this past June, it did not address other issues raised by the suit brought by the Christian college.
In addition to challenging the individual mandate, Liberty has argued that the additional mandate forcing employers to offer their workers federally-approved health insurance or pay a penalty violated the Constitution. Should judges reject the argument that the employer mandate is broadly unconstitutional, Staver emphasized that the university is also making the narrower argument that the individual and employer mandates are unconstitutional “as applied” to religious institutions, because the law forces them to pay for abortions. This, Staver said, “collide(s) with the free exercise of religion.”
Contrary to some news reports, Liberty University’s suit does not explicitly challenge the contraception mandate as it focuses on abortion. However, if successful, it would likely affect the contraception coverage requirement as well.
Staver said the Fourth Circuit panel rehearing the suit is likely the same as the one which heard the original suit, which would seem to cut against challengers to the law. That panel was comprised of two Obama-appointed judges and a Clinton-appointed judge.
“No matter which way this panel goes, this is a case that has had from the beginning Supreme Court written on it,” Staver insisted. “I think everybody realizes that the Court of Appeals is another stop in the way back to the U.S. Supreme Court.”
If the court were to strike down the employer mandate, Staver argued that the entire law should be struck down as well.
“If they struck the employer mandate, that essentially guts the law, because it cripples the law so much that it cannot continue to operate,” he said. “If we win on (free exercise or religion), that may not gut the law, but it puts a big hole in the bottom of the boat that ultimately does, I think, significant damage to the law that will impede its implementation.”
When Liberty had argued its case to the Fourth Circuit Court of Appeals in Richmond last year, the judges essentially punted. They determined that a statute called the Anti-Injunction Act, which bars challenges to a tax until somebody has paid it, prevented the court from considering the suit at that time. But as part of its June ruling on the health care law, the Supreme Court said that the Anti-Injunction Act did not apply in this case. (This confused many, because justices also separately ruled that the individual mandate was a constitutional exercise of Congress’s taxing power.)
Given that the Supreme Court ruled that the AIA did not apply, Liberty filed a petition for their case to be reheard by the Fourth Circuit, so that the merits of its challenges to the employer mandate and abortion funding could be considered. And that’s what the justices granted today.