Affordable Care Act

  • 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.”

  • November 2, 2012

    by Jeremy Leaming

    Earlier this year after U.S. Solicitor General Donald B. Verrilli Jr. took to the Supreme Court to defend the Obama administration’s landmark health care reform law and argue against portions of Arizona’s rigid anti-immigrant law, some pundits scored Verrilli for apparently dropping the ball, so-to-speak. After the oral argument in the Arizona case, the Drudge Report claimed “Obama’s Lawyer Chokes Again.” And from the left Adam Serwer in a piece for Mother Jones said Verrilli (pictured) seemed unprepared for defending the Affordable Care Act, saying he appeared to advance only “jargon and talking points.”

    At the time there was some push back, including this ACSblog post, against the trashing of Verrilli’s work. Andrew Pincus, a partner at Mayer Brown, scoffed at the criticism telling MSNBC that oral argument very rarely plays a major factor in determining the outcome of cases before the high court.

    But in a much more thoughtful and in-depth piece for SCOTUSblog, distinguished law professor Alan B. Morrison explains why figuring out Supreme Court wins is not a simple endeavor.

    For example, Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law at GW, notes the complexity of the case involving the ACA – there were multiple issues at play in that one.

  • October 31, 2012
    Guest Post

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


    Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

    Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

    The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

  • October 22, 2012

    by Jeremy Leaming

    The lawsuits lodged against the Affordable Care Act’s contraception coverage policy are resting on wobbly legal ground, says a Brigham Young University law school professor in a new ACS Issue Brief.

    In “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate,” Frederick Mark Gedicks, a distinguished law professor at BYU, says the ACA’s requirement that employers ensure that their health care coverage provides access to contraceptives for women “strikes a careful and sensible balance of competing liberty interests by exempting religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.”

    Gedicks notes that the contraception coverage policy also “exempts churches who largely employ and serve persons of their own faith, but not religious employers who hire and serve large numbers of employees who do not belong to the employer’s religion or who otherwise rejects its anti-contraception values.”

    Earlier this year social conservatives attacked the ACA’s contraception coverage policy saying it would force them to trample their religious beliefs by providing free contraceptives to their employees. Even with the administration’s announcement that churches and religious orders would be exempt from the mandate for coverage of contraception, some religious employers continued to demand a broader exemption. When that did not occur religious employers began lodging lawsuits around the country on First Amendment grounds and on the claims that their rights pursuant to the Religious Freedom Restoration Act (RFRA) would be violated.

  • September 14, 2012
    Guest Post

    By Kent Greenfield, Professor and Law Fund Research Scholar, Boston College Law School. Follow Professor Greenfield @kentgreenfield1. This post is part of an ACSblog Constitution Day Symposium.


    Every September, the American Constitution Society celebrates Constitution Day, as well it should. ACS isn’t alone, of course. Schools around the country, from kindergartens to universities, also commemorate the day in various ways.

    And every year at this time I play the constitutional curmudgeon, warning that Constitution Day may be unconstitutional. You can read previous iterations of my arguments in this blog here and in The New York Times here.

    The basic argument is that Constitution Day is unconstitutional because, as a federal mandate on any public or private educational institution receiving federal funds, it amounts to coerced speech under the First Amendment.  If a kindergarten or university were to refuse to alter their curriculum to cover the topic, they would stand to lose all federal funds.  That sounds to me like a violation of the unconstitutional conditions doctrine.  As Justice Jackson famously said for the Court in West Virginia v Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

    Because I’m a law professor, I can alter the hypothetical to make my point. If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional?

    Of course the argument is not simple, mostly because the unconstitutional conditions doctrine is a hash. Sometimes the Court allows conditions — see Rumsfeld v FAIR or Rust v Sullivan — and sometimes it doesn’t — see Speiser v Randall or Legal Services Corp. v Velazquez.

    I will say, however, that my argument is stronger this year. Why? Because of Chief Justice Roberts’s opinion in National Federation of Independent Business v Sebelius, the ACA case.