Supreme Court Order Resuscitates Challenges to Affordable Care Act. Should You Worry?

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.”

Despite overwhelming evidence of contraception’s widespread effectiveness, some religious employers immediately began busily working to undermine the law’s contraception provision.

Today’s move may open the door to even more legal challenges against the ACA and its provisions, though their chances would be slim. An ACS Issue Brief by BYU law school Professor Frederick Mark Gedicks released last month explains the weakness underlying religious employers’ arguments that the ACA’s contraception policy violates their First Amendment rights. He explains that the law’s contraception policy does not force employers “to make any decision about the use of mandated contraceptives by their employers; all such decisions are made by each individual employee, who may not even be a member of the employer’s faith.”

Gedicks continues, “It is hard to see how employee decisions to use contraceptives constitute a ‘substantial burden’ on the employer’s religious liberty to avoid endorsing contraception use.”

It should be noted, as TPM did, that the Justice Department allowed the arguments to proceed several weeks ago – a sign, perhaps, that the administration is not too worried about Liberty University’s challenge.