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Not Dead Yet; U.S. Supreme Court Revives Constitutional Challenge to Health Care Statute’s Contraception and Abortion Mandate

Posted in Recent Cases

Earlier today, the U.S. Supreme Court ordered the Fourth Circuit to reconsider a constitutional challenge to the Patient Protection and Affordable Care Act, Public Law 111-148, brought by Liberty University.  The Christian college, one of the largest in the country, argues that the health care statute’s mandate requiring employers to provide health care coverage for contraception and abortifacients violates its constitutional right to the free exercise of religion.

As we reported last year, the Fourth Circuit previously had held that Liberty University could not bring its constitutional challenge on the ground that its lawsuit constituted “a pre-enforcement action seeking to restrain the assessment of a tax,” and thus “the Anti-Injunction Act strips us of jurisdiction.”  See Opinion, Liberty University, Inc. v. Geithner (Fourth Circuit, Case No. 10-2347) (PDF).  The U.S. Supreme Court rejected such an argument back on June 28, 2012 when it upheld the constitutionality of the individual mandate requiring individuals to purchase health insurance as a valid exercise of Congress’s taxing power.  See Opinion, National Federation of Independent Business v. Sebelius (Sup. Ct. Case No. 11-393) (PDF).  The Supreme Court’s conclusion relating to the Anti-Injunction Act was the same conclusion reached by the Sixth Circuit back in June 2011 when it became the first Circuit Court in the country to uphold the health care statute’s constitutionality.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).

Notably, the Obama Administration did not challenge Liberty University’s effort to bring the case back to the Fourth Circuit because it recognized that the issues raised by the school had not been addressed by the Supreme Court in its June 28 ruling.  And so begins another round of briefing on the constitutionality of the health care statute, and (potentially) another Supreme Court showdown.  It would not be surprising to see related lawsuits in the Sixth Circuit.  Stay tuned.