Affordable Care Act

  • January 8, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law

    The preventive care provisions of the Affordable Care Act (ACA), which include coverage of women’s reproductive health, took effect on January 1. To date, the thirteen district courts’ and three appeals courts’ decisions involving secular, for-profit companies’ challenges to the ACA’s contraceptive insurance mandate are all over the map. They lack a coherent rationale and reasoning. Instead, the courts should rule consistently that the exemption requested by the plaintiffs violates the Establishment Clause.

    According to the contraceptive coverage mandate, employee group health benefit plans must contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Numerous secular, for-profit companies and their Catholic, Christian or Mennonite owners challenged the mandate as a violation of their constitutional free exercise rights and the statutory protection of the Religious Freedom Restoration Act, which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.”

    Among the plaintiffs in the secular, for-profit lawsuits are Weingartz Supply Company, which sells outdoor power equipment; Hobby Lobby, an arts and crafts store; Mardel, Inc., a bookstore and educational supply company; Hercules Industries, which manufactures and distributes heating, ventilation and air conditioning (HVAC); O’Brien Industrial Holdings, LLC, which mines, processes and distributes refractory and ceramic materials and products; Tyndale House Publishers, a Christian publishing company; American Pulverizer Co., Springfield Iron and Metal, LLC, Hustler Conveyor Co., and City Welding, businesses engaged in scrap metal recycling and manufacturing of scrap-related machines; Korte & Luitjohan Contractors, a construction business; Domino’s Farms, a property management company owned by Thomas Monaghan, the founder of Domino’s Pizza; Sharpe Holdings, Inc., a non-bank holding company including farming, dairy, creamery, and cheese-making; Conestoga Wood Specialties Corp., a cabinet and wood specialties company; Grote Industries, which manufactures vehicle safety systems; Triune Health Groups, which helps injured workers reenter the workplace; and Autocam Industries, which provides automotive parts.

  • January 7, 2013

    by Jeremy Leaming

    It can be difficult to follow with great interest the machinations in the nation’s capital, especially with divisive, often ridiculous debates that unfold and then are taken to a whole new level by loud pundits dominating airwaves. But when cynicism sets in, as it has within parts of my family, there’s almost no room for serious, calm conversation about policy that is actually being advanced in the confines of the beltway.

    Over the winter break I had the great fortune of seeing three of my brothers, two of whom I rarely get to see anymore. One brother, who has veered from libertarianism to socialism, has written off the entire political process. President Obama is a tool of Wall Street, it would not have mattered had Mitt Romney won the White House, they both represent the same interests, he would say. He scoffed at the Affordable Care Act – no public option, no expansion of health care to the needy – and at the extension of unemployment benefits that has occurred under the Obama administration’s watch. In my brother’s mind the entire system was bought by big corporations a long time ago and they pull all the strings of both major political parties. But I wasn’t all that surprised – he’s been regurgitating the late comedian George Carlin’s stinging, though simplistic, lines about a broken American government for many years now.

    The reality is that the American political process is messy, incredibly divisive and often terribly exhaustive and inadequate. But the constant carping about how bad politicians are is also tiring and irrelevant. When hasn’t our democracy been a messy, maddening affair? Sure there have been respites, but they often don’t last long. It’s a fairly large country, and regardless of Carlin’s jabs, we do and have had some remarkable politicians and heroic leaders for equality and civil rights.

    And regarding the Obama administration’s first term, a little research would reveal that it is wildly over-the-top to blast it as a tool of big business. As The American Prospect’s Jamelle Bouie notes, Obama’s first two years in office “are a good case study of what happens when Democrats have control of the federal government – they try to expand it. In those two years, Democrats greatly expanded the welfare state with a new, quasi-universal health-care program, funneled hundreds of billions of dollars to infrastructure and clean energy research, and implemented a host of new financial regulations. There’s a reason Time correspondent Michael Grunwald called his book on the stimulus The New New Deal – in both size and scope, the activity of Obama and the 111th Congress resembled that of FDR’s first term.”

  • December 4, 2012

    by Jeremy Leaming

    When the Supreme Court announced in fall 2011 that it would review the constitutionality of the landmark health care reform law, civil rights groups and constitutional experts tried to highlight the lawsuits' threat to  the expansion of Medicaid coverage -- and what it would mean if the Supreme Court adopted the states' arguements against the expansion. If the high court were to decide that Congress had overstepped its spending power by penalizing states for not joining in the expansion of Medicaid it could have a potentially profound impact on other progressive laws, such as the Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972.

    Writing for Slate, Simon Lazarus and Dahlia Lithwick warned that if the high court were to side with the states’ argument against the Affordable Care Act’s expansion of Medicaid (the states argued that they were being unconstitutionally coerced into expanding Medicaid) then other programs run by the states with federal dollars could be in jeopardy. The ACA sought to expand Medicaid coverage to adults below 133 percent of the Federal Poverty Line. In a 2011 ACS Issue Brief, Lazarus, senior counsel at the Constitutional Accountability Center, described the states’ arguments against the Medicaid expansion as proposing “a radical upheaval in applicable constitutional law.”

    But the National Women’s Law Center’s Emily J. Martin in an ACS Issue Brief released today argues that the majority’s spending clause analysis from the high court’s ACA opinion from late June does not pose a danger to the major federal law aimed at stopping discrimination against women – Title IX.

    Title IX, in part, states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….”

    Martin, vice president and general counsel at NWLC, provides great detail on why the Roberts Court’s spending clause analysis would not undermine the antidiscrimination law and also notes that even if Title IX were vulnerable to a spending clause challenge based on the ACA decision, it would still survive because it is an appropriate means for Congress to enforce the Fourteenth Amendment’s equal protection clause.

  • November 29, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    John Breen, Professor of Law at Loyola University Chicago School of Law recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.

    1. Professor Breen, like many mandate opponents, refuses to recognize that employers’ free exercise of religion rights are not the only liberties at stake in this conflict. Using the Religious Freedom Restoration Act (RFRA) to exempt employers from the mandate would deny their employees contraceptive coverage without-cost sharing under employer health insurance plans. Employees would be denied this benefit because of religious beliefs they do not share. This is an obvious intrusion on employee liberty in general -- it denies employees covered by an employer health plan their statutory right to no-cost contraception coverage under the ACA -- and an obvious intrusion on their religious liberty in particular -- it imposes the burdens of observing the employer’s religious beliefs on employees who do not share them. The fact that employees would remain free to purchase contraceptives with their own money is no justification for loss of the statutory right to contraceptives without spending their own money.

    Professor Breen maintains that no government action is involved when employers are exempted from the mandate -- indeed, that government action is “entirely absent” when an employer decides “to refrain from paying for contraceptives under its health plan.” But an employer may make this decision to violate the mandate, if at all, only because it is permitted to do so (a) by RFRA as (b) applied by a judge. These are both government actions that, in the event, would result in an intrusion on employee liberty.

  • November 26, 2012

    by Amanda Simon

    The Supreme Court today revived challenges to the Affordable Care Act’s employer mandate and contraceptive coverage provision. The challenge, brought by Liberty University, has now been given new life. With its 5-4 ruling in June, the Court held that the ACA and its coverage provisions were constitutional. Now, the future of the mandate is a bit hazier.

    Though the Fourth Circuit Court of Appeals dismissed the case, Liberty University v. Geithner, in September, the Supreme Court today ordered the appeals court to rehear the challenge, opening the door to what could be a significant legal battle. Liberty University, a Christian college founded by the controversial TV preacher Jerry Falwell, brought the suit saying the ACA violated its First Amendment rights as well as the Religious Freedom Restoration Act by requiring the school to provide insurance that could be used for abortions.

    The Fourth Circuit based its dismissal of the university’s case on standing, saying it could not challenge a tax that had yet to be implemented. However, in its ruling on the ACA, Talking Points Memo reports, “the Supreme Court dismissed the standing argument, implicitly conceding that taxpayers may challenge the ACA’s mandates, even ones that have yet to take effect — providing Liberty an opening to move forward with its case.”