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A brief history of how the Patient Protection and Affordable Care Act came to be, and a review of the lawsuits that tried to destroy it.

On June 17, 2021, The Associated Press reported that the Supreme Court rejected the latest major Republican-led effort to kill the national health care law known as “Obamacare”. The result is that the Supreme Court preserved insurance coverage for millions of Americans.

Also on June 17, 2021, Politico posted an article titled: “Supreme Court tosses lawsuit challenging Obamacare”. It was written by Susannah Luthi and Josh Gerstein. From the article:

The Supreme Court on Thursday threw out a lawsuit threatening the entirety of the Affordable Care Act, finding that Republican-led states behind the case did not have legal ground to challenge the landmark health care law.

The 7-2 decision, which preserves health insurance for millions and the law’s popular protections for preexisting conditions, may serve as the final chapter in the decade-long legal assault on the Affordable Care Act, arriving as President Joe Biden seeks to build on the law’s coverage provisions. It’s also the final blow to former President Donald Trump’s pledge to rip up his predecessor’s signature health care law, after his administration had supported the red states who brought the lawsuit…

How did the Supreme Court Justices Decide this Case?

The case was called California Et Al. v. Texas Et AL. The case was argued before the Supreme Court on November 10, 2020, and decided on June 17, 2021. From the syllabus portion of the decision:

The Patient Protection and Affordable Care Act as enacted in 2010 required most Americans to obtain minimum essential health insurance coverage and imposed a monetary penalty upon most individuals who failed to do so. Amendments to the Act in 2017 effectively nullified the penalty by setting its amount to $0. Subsequently, Texas (along with over a dozen States and two individuals) brought the suit against federal officials, claiming that without the penalty the Act’s minimum essential coverage provision, codified at 26 U.S.C. §5000A(a), is unconstitutional.

They sought a declaration that the provision is unconstitutional, a finding that the rest of the Act is not severable from §5000A(a) both unconstitutional and not severable from the rest of the Act. The District Court determined that the individual plaintiffs had standing. It also found §5000A(a) both unconstitutional and not severable from the rest of the Act.

The Fifth Circuit agreed as to the existence of standing and the unconstitutionality of §5000A(a), but concluded that the District Court’s severability analysis provided insufficient justification to strike down the entire Act. Petitioner California and other States intervened to defend the Act’s constitutionality and to seek further review.

Held. Plaintiffs do not have standing to challenge §5000A(a)’s minimum essential coverage provisions because they have not shown a past or future injury fairly traceable to defendants’ conduct enforcing the specific statutory provision they attack as unconstitutional….

…(a) The Constitution gives federal courts the power to adjudicate only genuine “Cases” and “Controversies.” … To have standing, a plaintiff must “allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”… No plaintiff has shown such an injury “fairly traceable” to the “allegedly unlawful conduct” challenged here…

…(b) The two individual plaintiffs claim a particularized individual harm in the form of past and future payments necessary to carry the minimum essential coverage that §5000A(a) requires. Assuming this pocketbook injury satisfies the injury element of Article III standing, it is not “fairly traceable” to any “allegedly unlawful conduct” of which the plaintiffs complain… …Without a penalty for noncompliance, §5000A(a) is unenforceable. The individuals have not shown that any kind of Government action or conduct has caused or will cause the injury they attribute to §5000A(a). The Court’s cases have consistently spoken of the need to assert an injury that is the result of a statute’s actual or threatened enforcement, whether today or in the future… …Here, there is only the statute’s textually unenforceable language.

Unenforceable statutory language alone is not sufficient to establish standing, as the redressability requirement makes clear. Whether an injury is redressable depends on the relationship between “the judicial relief requested” and the “injury” suffered… … The only relief sought regarding the minimum essential coverage provision is declaratory relief, namely, a judicial statement that the provision challenged is unconstitutional. But just like suits for every other type of remedy, declaratory-judgement actions must satisfy Article III’s case-or-controversy requirement…

…Article III standing requires identification of a remedy that will redress the individual plaintiffs’ injuries… …No remedy exists here. To find standing to attack an unenforceable statutory provision would allow a federal court to issue what would amount to an advisory opinion without the possibility of an Article III remedy. Article III guards against federal courts assuming this kind of jurisdiction…

…The Court also declines to consider Federal respondents’ novel alternative theory of standing first raised in its merits brief on behalf of the individuals, as well as the dissent’s novel theory on behalf of the states, neither of which was directly argued by plaintiffs below nor presented at the certiorari stage…

…(c) Texas and the other state plaintiffs have similarly failed to show that the pocketbook injuries they allege are traceable to the Government’s allegedly unlawful conduct… …They allege two forms of injury: one indirect, one direct.

(1) The state plaintiffs allege indirect injury in the form of increased costs to run state-operated medical insurance programs. They say the minimum essential coverage provision has caused more state residents to enroll in the programs. The States, like the individual plaintiffs, have failed to show how that alleged harm is traceable so the Government’s actual or possible action in enforcing §5000A(a), so they lack Article III standing as a matter of law.

But the States have not shown that the challenged minimum essential coverage provision, without any prospect of penalty, will injure them by leading more individuals to enroll in these programs. Where a standing theory rests on speculation about the decision of an independent third party (here an individual’s decision to enroll in a program like Medicaid), the plaintiff must show at least “that third parties will likely act in predictable ways”…

…Neither logic nor evidence suggests that an uninforcable mandate will cause state residents to enroll in valuable benefit programs that they would otherwise forgo. It would require far stronger evidence than the States have offered here to support their counterintuitive theory of standing, which rests on a “highly attenuated chain of possibilities.”…

…(2) The state plaintiffs also claim a direct injury resulting from a variety of increased administrative and related expenses allegedly required by §5000A(a)’s minimum essential coverage provision. But other provisions of the Act, not the minimum essential coverage provision, impose these requirements. These provisions are enforced without reference to §5000A(a). No one claims these other provisions violate the Constitution. The Government’s conduct in question is therefore not “fairly traceable” to enforcement of the “allegedly un-lawful” provision of which the plaintiffs complain…

Reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Sotomayor, Kagan, Kavanaugh, and Barrett, J.J., joined. Thomas, J., filed a concurring opinion. Alto,J., filed a dissenting opinion, in which Gorsuch J., joined.

What Came Before this Case?

Ballotpedia provided the following overview of Obamacare:

2010

  • July 2009: House Democrats introduced the Affordable Health Care for America Act, the precursor to the Affordable Care Act. The House passed the bill on
  • November 7, 2009: with the votes of 219 Democrats and one Republican (Representative Joseph Cao – R-La.). Thirty-nine Democrats and 176 Republicans voted against the bill.
  • December 24, 2009: The Senate passed its version of the bill 60-39, with all Democrats voting in favor of the bill and all Republicans but one voting against it (Senator Jim Bunning – R-Ky).
  • January 1, 2010: The federal government begins providing tax credits for small business offering health insurance to employees.
  • January 2010: Republican Scott Brown of Massachusetts won a special election to fill the seat of Senator Ted Kennedy (D-Mass), who had died in August of 2009. With the election of Brown, Senate Democrats would not have the 60 votes to overcome a Republican filibuster on a new bill. A majority of the House Democratic Caucus agreed to pass the Senate bill as long as subsequent budget-related changes to the bill could be made via the reconciliation process. Reconciliation bills only need 50 Senate votes to pass and are not subject to filibuster.
  • March 21, 2010: The House passed the Senate bill with 178 House Republicans opposing the bill’s passage along with 34 Democrats, while 219 Democrats voted in favor, leaving the final vote 219-212. The House passed the reconciliation package on the same day by a vote of 220-211.
  • March 23, 2010: President Obama signed the Senate bill.
  • March 25, 2010: The Senate approved the reconciliation bill by a vote of 56-43.
  • March 30, 2010: President Obama signed the reconciliation bill. The two bills together are referred to as the Patient Protection and Affordable Care Act (PPACA), the Affordable Care Act (ACA), or Obamacare.
  • July 1, 2010: The Temporary Pre-existing Condition Insurance Plan is established, offered by either the federal government or individual state governments. The program provides coverage for individuals with pre-existing conditions until 2014.
  • July 1, 2010: Deadline for HealthCare.gov to be established as a minimally functioning website to educate consumers on coverage options.
  • July 1, 2010: The federal government begins collecting a 10 percent excise tax on indoor tanning services.
  • September 23, 2010: The requirement for insurers to allow adult children to remain on a parent’s health insurance plan until age 26 begins.
  • September 23, 2010: Insurance plans are prohibited from setting lifetime coverage limitations.
  • September 23, 2010: The requirement for insurers to allow appeals with an external review process begins.
  • September 23, 2010: New plans established after this date are required to cover a standard set of health benefits (the 10 essential health benefits).

Healthcare.gov provided information about the 10 essential health benefits:

  • Ambulatory patient services (outpatient care you get without being admitted to a hospital)
  • Emergency services
  • Hospitalization (like surgery and overnight stays)
  • Pregnancy, maternity, and newborn care (both before and after birth)
  • Mental health and substance use disorder services, including behavioral health treatment (this includes counseling and psychotherapy)
  • Prescription drugs
  • Rehabilitative and habilitative services and devices (services and devices to help people with injuries, disabilities, or chronic conditions gain or recover mental and physical skills)
  • Laboratory services
  • Preventative and wellness services and chronic disease management
  • Pediatric services, including oral and vision care (but adult dental and vision coverage aren’t essential health benefits).

Additional benefits plans must also include: birth control coverage; breastfeeding coverage

Essential health benefits are minimum requirements for all Marketplace plans. Specific services covered in each broad benefit category can vary based on your state’s requirements. Plans may offer additional benefits, including: dental coverage; vision coverage; medical management programs (for specific needs like weight management, back pain, and diabetes)

2011

  • January 1, 2011: The requirement for insurers to provide rebate each year if a minimum portion of premiums was not spent on medical services begins.
  • January 1, 2011: Health savings accounts can be used for certain purposes.

According to HealthCare.gov, health savings accounts (HSA) are a type of savings account that lets you set aside money on a pre-tax basis to pay for qualified medical expenses. By using untaxed dollars in a Health Savings Account (HSA) to pay for deductibles, copayments, coinsurance, and some other expenses, you may be able to lower your overall health care costs. HSA funds generally may not be used to pay premiums.

While you can use the funds in an HSA at any time to pay for qualified medical expenses, you may contribute to an HSA only if you have a High Deductible Health Plan (HDHP) – generally a health plan (including a Marketplace plan) that only covers preventative services before the deductible.

  • March 23, 2011: The first round of grants are provided to states for the establishment of health insurance exchanges.

2012

  • September 23, 2012: The requirement for all insurers to provide a uniform summary of care and benefits to consumers begins.

2013

  • January 1, 2013: Deadline for states to notify the U.S. Department of Health and Human Services whether they will form their own exchanges or join the federal exchange.
  • July 1, 2013: Deadline for grants and loans to be awarded to start-up co-ops, nonprofit, member-run health insurance companies designed by the ACA.

2014

  • January 1, 2014: States begin to be allowed to expand Medicaid coverage to childless adults under 65 earning incomes up to 138 percent of the federal poverty level.
  • January 1, 2014: Deadline for individuals to obtain health insurance to avoid paying a tax penalty.
  • January 1, 2014: Insurance companies no longer allowed to place annual limits on the amount they pay out for benefits.
  • March 31, 2014: Months spend without health insurance begin to be counted toward the tax penalty.

2015

  • January 1, 2015: Employers with more than 100 employees assessed fees, per employee, for not providing health insurance options.

2016

  • January 1, 2016: Employers with 50 – 99 employees assessed fees, per employee, for not providing health insurance options.

A List of Obamacare Lawsuits

National Federation of Independent Business v. Sebelius

Argued March 26, 27, 28, 2012 – Decided June 28, 2012

The National Federation of Independent Business (NFIB) describes itself as “the voice of small business, advocating on behalf of America’s small and independent business owners, both in Washington, D.C., and in all 50 state capitals. NFIB is nonprofit, nonpartisan, and member-driven.” They were founded in 1943.

Ballotpedia provided some background on this case.

The Patient Protection and Affordable Care Act, also known as the Affordable Care Act (ACA) or Obamacare, was enacted with the primary aim of expanding health insurance coverage to more people. To that end, the law required most individuals to acquire and maintain minimum health insurance coverage or be penalized. It also required states to expand eligibility for their Medicaid programs to all individuals with incomes up to 138 percent of the federal poverty level. If the state refused to expand, the law said that the federal government could completely withhold its portion of Medicaid funding from the state.

Less than two months after the law was enacted, a federal lawsuit was filed in Florida, consisting of 26 states, two individuals, and an independent organization. The following plaintiffs joined: The Attorneys General of Arizona, Indiana, Mississippi, Nevada, North Dakota, Alabama, Colorado, Florida, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Georgia, Alaska, Ohio, Wisconsin, Kansas, Maine, Iowa, and Wyoming: Mary Brown and Kaj Ahlburg; and the National Federation of Independent Business. The lawsuit was brought to the federal District Court for the Northern District of Florida by Florida state Attorney General Bill McCollum on March 23, 2010.

The lawsuit challenged the Affordable Care Act for the Northern District of Florida ruled on January 31, 2011, that the individual health insurance mandate exceeded Congress’ authority. It also ruled that the individual mandate could not be severed from the rest of the Affordable Care Act, thus striking the entire act. However, it found in favor of the federal government with regard to the Medicaid expansion.

The federal government appealed the ruling, which then went to the Eleventh Circuit Court of Appeals. The Eleventh Circuit affirmed in part and reversed in part the judgement of the lower court. It agreed that the Medicaid expansion provision was not unconstitutionally coercive and that the individual mandate was unconstitutional. However, the Eleventh Circuit held that “the individual mandate could be severed without invalidating the remainder of the ACA”…

The Supreme Court released its decision on June 28, 2012. Here is part of the syllabus:

Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. One key provision is the individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage. 26 U.S.C. §5000A.

For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. 5000A(b)(1). The Act provides that this “penalty” will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §5000A(c), (g)(1).

Another key provision of the Act is the Medicaid expansion. The current Medicaid program offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care…

The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires a state to provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover childless adults at all… The Act increases federal funding to cover the States’ costs in expanding Medicaid coverage… But if a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds…

Twenty-six States, several individuals and the National Federation of Independent Business brought suit in Federal District Court, challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded that Congress lacked authority to enact the individual mandate. Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact.

Held. The judgment is affirmed in part and reversed in part.

1 Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty” not a “tax”. That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit.

2 Chief Justice Roberts concluded in Part III-A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause…

(a) The Constitution grants Congress the power to “regulate Commerce”… The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity“… The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do.

The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce”….

(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercise of authority derivative of, and in service to, a granted power. … The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such a mandate is “necessary” of federal power is not a “proper” means for making those reforms…

3 Chief Justice Roberts concluded in Part III-B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”… In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be restored to, in order to save a statute from unconstitutionality,” … the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax…

4 Chief Justice Roberts delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause…

(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax”. That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, [d]isregarding the designation of the exaction, and viewing its sub-stance and application.”…

(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts are; and the payment is collected solely by the IRS through the normal means of taxation…. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language – stating that individuals “shall” obtain insurance or pay a “penalty” – does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance…

(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”… A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. it therefore need not be apportioned so that each State pays in proportion to its population.

5 Chief Justice Roberts, joined by Justice Breyer and Justice Kagan, concluded in Part IV that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion…

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the… general Welfare of the United States.” … Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs…. “[T] Constitution simply does not give Congress the authority to require the States to regulate”…. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism.

(b) Section 1396c gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding… The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion. The Government claims that the expansion is properly viewed as only a modification of an existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid…

But the expansion accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion.

(c) The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion… The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the Medicaid expansion…

6 Justice Ginsburg, joined by Justice Sotomayor, is of the view that the Spending Clause does not preclude a Secretary from withholding Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program. But given the majority view, she agrees with THE CHIEF JUSTICE’s conclusion in Part IV-B that the Medicaid Act’s severability clause, 42 U. S. C. §130, determines the appropriate remedy. Because THE CHIEF JUSTICE finds the withholding – not the granting – of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate. Even absent 1303’s command, the Court would have no warrant to invalidate the funding offered by the Medicaid expansion, and surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation…

Roberts, C.J., announced the judgement of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-C, in which Ginsburg, Breyer, Sotomayor, and Kagan, J.J., joined; and an opinion with respect to Parts III-A, III-B, and III-D. Ginsburg, J. filed an opinion concurring in part and dissenting in part, in which Sotomayor, J. joined, and in which Beyer and Kagan, J.J., joined as to Parts I, II, III, and IV. Scalia, Kennedy, Thomas, and Alito, J.J., filed a dissenting opinion. Thomas, J. filed a dissenting opinion.

Burwell v. Hobby Lobby Stores, Inc.

Argued March 25, 2014 – Decided June 30, 2014

Ballotpedia provided information about Burwell v. Hobby Lobby Stores, Inc.

The Patient Protection and Affordable Care Act, also known as the Affordable Care Act or Obamacare, mandated that insurance plans must cover preventative healthcare – which the U.S. Department of Health and Human Services later interpreted to include contraception – at no cost. Employers that didn’t provide this benefit in their health insurance plan would face fines. Religious organizations argued that being required to cover birth control violated religious freedoms. Religious employers and nonprofits were exempted from the requirement, but religious for-profit corporations were not.

Hobby Lobby, a company that describes itself as “operating… in a manner consistent with Biblical principals,” sued the secretary of health and human services, Kathleen Sebelius, on September 12, 2012. The company sought exemptions from coverage of four different contraceptives – two emergency morning-after pills and two intrauterine devices (IUDs) – on the basis that those contraceptives violated their religious beliefs. The company did not argue against providing other forms of contraception.

The district court denied the company’s request for a preliminary injunction against enforcement of the mandate, a judgement that was affirmed upon review by a two-judge panel of the Tenth Circuit Court of Appeals. The Supreme Court also denied the request, at which point Hobby Lobby requested – and was granted – a hearing by the full Tenth Circuit Court. The Tenth Circuit reversed the opinion of a two-judge panel and ruled in favor of Hobby Lobby, holding that closely held religious corporations were protected by both the Religious Freedom Restoration Act and the First Amendment of the United States Constitution.

Similarly, Conestoga Wood Specialties was a company owned by a Mennonite family who objected to contraceptives that could potentially cause an abortion. In July 2013, the Third Circuit Court of Appeals ruled against Conestoga Wood Specialties on the grounds that for-profit corporations cannot engage in religious exercise.

To resolve the discrepancy, the Supreme Court granted certiorari on November 25, 2013, and oral argument on March 24, 2014.


By the time the case made it to the Supreme Court, Kathleen Sebelius was no longer the Secretary of the U.S. Department of Health and Human Services. Sylvia Mathews Burwell was sworn in as the 22nd Secretary of Health and Human Services on June 9, 2014.

The Supreme Court limited oral arguments to the following question: “Whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”

RFRA is the Religious Freedom Restoration Act. It was passed by Congress in 1993. It is described this way:

Religious Freedom Restoration Act of 1993 – Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.


The Supreme Court ruled on Burwell v. Hobby Lobby Stores, Inc., on June 30, 2014. From the syllabus:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”… (b) As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”…

At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ group health plans to furnish “preventative care and screenings” for women without “any cost sharing requirements.”… Congress did not specify what types of preventative care must be covered; it authorized the Health Resources and Service Administration, a component of HHS, to decide…

…Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that have an effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus….


NOTE: The description of the 4 contraceptive methods “…that have an effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus…” is entirely incorrect.

On May 1, 2013, LiveScience posted an article titled: “How Does Plan B Work?” It was written by Rachael Rettner. From the article:

…The drug mainly prevents pregnancy by stopping the release of an egg from the ovary, and by preventing the fertilization of an egg. Dr. Christopher Estes, assistant professor of obstetrics and gynecology at the University of Miami Miller School of Medicine, told MyHealthNewsDaily in a 2011 interview. While the drug causes changes to the lining of the uterus, it does not interfere with the implantation of a fertilized egg, Estes said. In fact, in order to stabilize the pregnancies of women who’ve suffered miscarriages, doctors give a drug very similar to Plan B, Estes said.

The drug will not work if a woman is already pregnant. (It has no effect on an existing pregnancy, according to Teva.) Emergency contraception will not cause an abortion…

Planned Parenthood posted information about IUD’s (Intrauterine Device):

There are 5 different brands of IUDs that are FDA approved for use in the United States: Paraguard, Mirena, Kyleena, Liletta, and Skyla. These IUDs are divided into two types: copper IUDs (Paraguard) and hormonal IUDs (Mirena, Kyleena, Liletta, and Skyla)…

…Both copper IUDs and hormonal IUDs prevent pregnancy by changing the way sperm cells move so it can’t get to an egg. If sperm can’t make it to an egg, pregnancy can’t happen.

The Paraguard IUD uses copper to prevent pregnancy. Sperm doesn’t like copper, so the Paraguard IUD makes it almost impossible for sperm to get to that egg.

The hormones in Mirena, Kyleena, Liletta, and Skyla IUDs prevent pregnancy in two ways: 1) they thicken the mucus that lives on the cervix, which blocks and traps the sperm, and 2) the hormones also sometimes stop eggs from leaving your ovaries (called ovulation), which means there’s no egg for a sperm to fertilize. No egg, no pregnancy…

Now that I’ve provided accurate information about these forms of birth control – that absolutely do not prevent “an already fertilized egg from developing any further by inhibiting its attachment to the uterus”, we can return to the syllabus of the Supreme Court.


…Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost-sharing requirements on the employer, its insurance plan, or its employee beneficiaries.

In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives.

In No. 13-356, the District Court denied the Hahns and their company – Conestoga Wood Specialties – a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity.

In No. 13-354, the Greens, their children, and their companies – Hobby Lobby Stores and Mardel – were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Green’s businesses are “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim because of the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.

Held. As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA…

(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations liek Conestoga, Hobby Lobby, and Mardel.

(b) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection on their religious liberty or forgo the benefits of operating as a corporation.

RFRA’s text shows that Congress designed the statute to provide very broad protection from religious liberty that it did not intent to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending the rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.

(2) HHS and the dissent make several unpersuasive arguments.

(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person” which “include[s] corporations… as well as individuals.”… The Court has entertained RFRA and free-exercise claims brought by nonprofit corporations… And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of “person” includes natural persons and non-profit corporations, but not for-profit corporations…


Why did Justice Alito think corporations are people? History.com provides an answer to that question. Here are the main points:

…But it wasn’t until the 1886 case Santa Clara County v. Southern Pacific Rail Road that the Court appeared to grant a corporation the same rights as an individual under the 14th Amendment. The case is remembered less for the decision itself – the state had improperly assessed taxes to the railroad company – than for a headnote added to it by the court reporter at the time, which quoted Chief Justice Morrison Waite as saying: “The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.”

In later cases, this headnote would be treated as an official part of the verdict, and Wait’s conclusion reaffirmed in subsequent decisions by the Court, from an 1888 case involving a steel-mining company to the 1978 Bellotti decision, which granted corporations the right to spend unlimited funds on ballot initiatives as part of their First Amendment right to freedom of speech.

In the 2020 case Citizens United v. Federal Election Commission (FEC), the most sweeping expansion of corporate rights yet, the Supreme Court cited Bellotti in its highly controversial 5-4 ruling that political speech by corporations is a form of free speech that is also covered under the First Amendment. In 2014’s Burwell v. Hobby Lobby Stores, another 5-4 ruling by the Court granted the right of closely-held companies, which aren’t traded on the stock market, to file for exemptions to federal laws on religious grounds…

And now we return to the Supreme Court’s ruling …


(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby and Mardel because they cannot “exercise… religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit-making objective of the corporations cannot explain it because the Court has entertained the free enterprise claims of individuals who were attempting to make a profit as retail merchants… Business practices compelled or limited by the tenets of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owner’s religious principles….

I’m not going to bother putting in the rest of the Court’s syllabus, because it just repeats itself over and over.

Alito,J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, and Thomas, J.J., joined. Kennedy, J. filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Sotomayor J., joined and in which Bryer and Kagan JJ., joined as to all but Part III-C-i. Breyer and Kagan, JJ., filed a dissenting opinion.

United States House of Representative vs. Sylvia Mathews Burwell

This Complaint for this case was filed on November 21, 2014. The opinion was released on May 16, 2016.

On July 10, 2014, The New York Times posted an article titled: “Suit Against Obama to Focus on Health Law, Boehner Says”. It was written by Jonathan Weisman. From the article:

Speaker John A. Boehner’s lawsuit against President Obama will focus on changes to the health law that Mr. Boehner says should have been left to Congress, according to a statement issued Thursday by the speaker’s office.

By narrowly focusing the legal action on the Affordable Care Act, Mr. Boehner will sidestep the more politically problematic issue involving Mr. Obama’s executive action offering work permits for some illegal immigrants who were brought to the United States as children.

Last month, Mr. Boehner announced his intention to seek legislation allowing the House to sue the president over his use of executive actions, a reflection of charges by congressional Republicans that the president has overreached his authority. On Thursday, Mr. Boehner said the lawsuit would specifically challenge the president’s decision to delay imposing penalties on employers who do not offer health insurance to employees in compliance with the Affordable Care Act.

“The current president believes he has the power to make his own laws – at times even boasting about it,” Mr. Boehner said in his statement. “He hasn’t said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself, and in the case of the employer mandate in his health care law, that’s exactly what he did.”

“If this president can get away with making his own laws, future presidents will have the ability to as well,” the speaker added. “The House has an obligation to stand up for the legislative branch, and the Constitution, and that is exactly what we will do.”…

…Mr. Boehner sought to clarify that he was not challenging Mr. Obama’s right to issue executive orders, only his right to change legislation without congressional approval…

…The House Rules Committee has scheduled a hearing on Wednesday to consider the legislation that would authorize the lawsuit.

On July 30, 2014, H.RES. 676 was presented to the House of Representatives for a vote. It was sponsored by Pete Sessions (Republican – Texas). From the resolution:

RESOLUTION

That the Speaker is authorized to initiate or intervene in one or more civil actions on behalf of the House of Representatives in a Federal court of competent jurisdiction to seek any appropriate relief regarding the failure of the President, the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to provide such provision.

Sec. 2 The Speaker shall notify the House of Representatives of a decision to initiate any such provision.

Sec. 3

(a) The Office of the General Counsel of the House of Representatives. at the direction of the Speaker, shall represent the House in any civil action initiated, or in which the House intervenes, pursuant to this resolution, and may employ the services of outside counsel and other experts for this purpose.

(b) The chair of the Committee on House Administration shall cause to be printed in the Congressional Record a statement setting forth the aggregate amounts expended by the Office of General Counsel on outside counsel and other experts pursuant to subsection (a) on a quarterly basis. Such statement shall be submitted for printing not more than 30 days after the expiration of each such period.

On July 30, 2014, The Hill posted an article titled: “House votes to sue Obama”. It was written by Christina Marcos. From the article:

The House voted Wednesday to rebuke President Obama by passing a resolution authorizing a lawsuit against his use of executive power.

The 225-201 vote fell along party lines, with five Republicans voting against the measure. No Democrats supported it.

The lawsuit is a direct response to GOP frustration with Obama’s wide-ranging use of executive power.

Republicans have been particularly angry over Obama’s decision to ignore several deadlines in the Affordable Care Act and his decision to defer the deportation of certain young people who illegally immigrated to the United States as children…

…Rather than seeking to impeach Obama, however, the GOP leaders in the House rallied around the lawsuit as a way of bottling up grassroots anger that would not backfire on Republicans in an election year….

…Republicans argued the employer mandate delay was part of a pattern in which the Obama administration has selectively enforced the law…

…It is unclear how much the lawsuit will cost. House Administration Committee Chairwoman Candice Miller (R-Mich.) said during her floor debate that Republicans “don’t know yet” because contracts haven’t been finalized and the length of the litigation is unknown.

Democrats called on the GOP to provide an estimate of how much taxpayer money will be spent on moving the lawsuit through the judicial system…

On November 11, 2014, Politico posted an article titled: “House files Obamacare lawsuit”. It was written by Laruren French. From the article:

The House of Representatives filed a long-awaited lawsuit Friday, alleging that the Obama administration ignored key aspects of its health care reform law when implementing the sweeping new government program.

The litigation, authorized by the House in July, addresses only the Affordable Care Act and makes no mention of immigration. However, the filing of the suit the morning after Obama unveiled his major executive action on immigration was clearly intended to underscore GOP lawmakers’ desire to paint the president as a chief executive intent on overstepping his legal bounds…

..President Barack Obama is not named as a defendant; the lawsuit, filed in U.S. District Court in Washington, names as defendants Health and Human Services Secretary Sylvia Mathews Burwell, Treasury Secretary Jack Lew, and their departments…

…The new lawsuit claims that two specific aspects of implementation of the Obamacare law violated the terms of the legislation.

First, the suit complains about repeated delays of the employer mandate, which was supposed to kick in in January of this year. The administration delayed the requirement until next year for some employers and until 2016 for others.

Second, the litigation challenges payments to insurance companies under a cost-sharing provision that the suit argues was never authorized by law. Such “offset” payments amounted to $3 billion in 2014 and could total $175 billion over 10 years, the House claims…

…The suit was filed for the House by George Washington University law professor Jonathan Turley. The liberal critic of Obama’s alleged executive overreach is the third attorney to handle the matter for the House. It was assigned to Judge Rosemary Collyer, who was appointed to the bench by President George W. Bush.

Two conservative litigators, David Rivkin of BakerHostetler and Bill Burck of Quinn Emanuel, were retained to handle the case earlier in the year. However, aides say both backed out after being pressured by other clients to drop the litigation…

…Pelosi’s office posted Turley’s contract online Friday. The constitutional law expert is receiving $500 an hour to represent the House but the contract tops out a $350,000.

The contract also bars Turley from discussing the case with the media, though law students from George Washington University can work on the lawsuit.

The contract ends on Jan. 3, 2015, or when the District Court rules on the lawsuit.

On November 21, 2014, The House of Representatives filed its complaint to the United States District Court for the District of Columbia. From the complaint:

The Plaintiff was: United States House of Representatives.

The Defendants were:

  • Sylvia Mathews Burwell – in her official capacity as Secretary of the United States Department of Health and Human Services.
  • United States Department of Health and Human Services
  • Jacob J, Lew – in his official capacity as Secretary of the United States Department of Treasury
  • United States Department of Treasury

This complaint is 28 pages long, so I’m only going to post the most important parts here.

COMPLAINT – PRELIMINARY STATEMENT

This case arises out of unconstitutional and unlawful actions taken by the Administration of President Barack Obama (the “Administration”) in respect to the Patient Protection and Affordable Care Act…. (“ACA”). In challenging these actions, this case addresses fundamental issues regarding the limits of Executive power under our constitutional form of government, and the continued viability of the separation of powers doctrine upon which “the whole American fabric has been erected.”… This lawsuit thus raises issues of exceptional importance, not only to plaintiff United States House of Representatives, but also to the entire nation.

One fundamental tenet of our divided-power system of government is that all legislative power is vested in Congress, and Congress alone. U.S. Const. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”) This legislative power may be exercised only through the “single, finely wrought, and exhaustively considered process,” … that is familiar to us all, namely, the passage of identical bills by the House of Representatives and the Senate (bicameralism), followed by delivery to the President for his signature or veto (presentment). … Beyond the President’s role in the presentment process, the Constitution does not permit the Executive Branch to enact laws, or to amend or repeal duly enacted laws, including by adopting rules or taking other unilateral actions that have such an effect.

Equally fundamental is the constitutional ban on the expenditure of any public funds by any branch of the federal government, including the Executive Branch, absent enactment of a law appropriating such funds: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law… Congress thus has a necessary role – indeed, the defining role – in our system over any expenditure of public funds by virtue of the fact that it must first pass identical appropriations bills in the House of Representatives and the Senate – and such bills become law – before any public funds may be expended, and then only as directed in such duly enacted appropriation laws. The Executive Branch has no authority to expend public funds that have no been thus appropriated.

The Administration has made no secret of its willingness, not withstanding Article I of the Constitution, to act without Congress when Congress declines to enact laws that the Administration desires. Not only is there no license for the Administration to “go it alone” in our system, but such unilateral action is directly barred by Article I. Despite such fundamental constitutional limitations, the Administration repeatedly has abused its power by using executive action as a substitute for legislation. This suit challenges two such abuses:

A. Defendants Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services, Jacob J. Lew, Secretary of the United States Department of the Treasury, and the respective Executive Branch departments they head, have violated, and are continuing to violate, the Constitution by directing, paying, and continuing to pay, public funds to certain insurance companies to implement a program authorized by the ACA, but for which no funds have been appropriated.

Such unconstitutional payments are estimated to exceed $3 billion in Fiscal Year 2014, and total approximately $175 billion over the next ten succeeding Fiscal Years. Defendants’ expenditure of taxpayer funds, absent a congressional appropriation, plainly is unconstitutional as it violates Article I of the Constitution; it also violates statutory law…

…Defendants Lew and the United States Department of the Treasury have also violated the Constitution by issuing a regulation that effectively amends ACA provisions that impose mandates on certain employers and establish a deadline by which such employers must comply with those mandates. These unconstitutional actions are estimated to cost federal taxpayers at least $12 billion.

The House now brings this civil action for declaratory and injunctive relief to halt these unconstitutional and unlawful actions which usurp the House’s Article I legislative powers….

Here is a summary of the Allegations:

  • The Constitution Vests the Congress, Not the Executive, with the Authority to Legislate, Including the Authority to Legislate to Appropriate Public Funds
  • Authorizing Legislation Is Distinct from Appropriation Legislation
  • The Patient Protection and Affordable Care Act – the ACA – Becomes Law
  • The Administration Expends Public Funds That Congress Has Not Appropriated
  • The Administration Unilaterally Amends Employer Mandate Provisions of the ACA

Here is a summary of the Claims for Relief:

COUNT 1: Section 1402 Offset Program Payments to Insurers Violate Article I, Section 9, Clause 7, of the Constitution.

…WHEREFORE, the House prays that the Court (i) declare that defendants’ Section 1402 Offset Program payments to Insurers violate Article I, section 9, clause 7, of the Constitution, and (ii) enjoin defendants Lew and the Treasury Department from making any additional Section 1402 Offset Program payments to Insurers unless and until a law appropriating funds for such payments is enacted in accordance with Article I of the Constitution.

COUNT II: Section 1402 Offset Program Payments to Insurers Violate Article I, Section I, and Article I, Section 7, Clause 2 of the Constitution)

… The House has been injured, and will continue to be injured, by defendants’ unconstitutional actions which, among other things, usurp the House’s legislative authority.

…WHEREFORE, the House prays that the Court (i) declare that defendants’ Section 1402 Offset Program payments to Insurers violate Article I, section I, and Article I, section 7, clause 2 of the Constitution, and (ii) enjoin defendants Lew and the Treasury Department from making any additional Section 1402 Offset Program payments to Insurers unless and until a law appropriating funds for such payments is enacted in accordance with Article I of the Constitution.

COUNT III: Section 1402 Offset Program Payments to Insurers Violate 31 U.S.C. § 1324)

…WHEREFORE, the House prays that the Court (i) declare that defendants’ Section 1402 Offset Program payments to Insurers violate section 1324 of title 31, and (ii) enjoin defendants Lew and the Treasury Department from making any additional Section 1402 Offset Program payments to Insurers unless and until a law appropriating funds for such payments is enacted in accordance with Article I of the Constitution.

COUNT IV: Section 1402 Offset Program Payments to Insurers Violate the ACA

…In Section 1401 of the ACA, Congress established a new program – the Section 1401 Refundable Tax Credit Program – and elsewhere in the ACA, appropriated funds for that program by expressly linking the program to the permanent appropriation for refunds due under the IRC…

…In Section 1402 of the ACA, Congress established another new program – the Section 1402 Offset Program. However, in stark contrast to the Section 1401 Refundable Tax Credit Program, Congress did not provide any appropriation for the Section 1402 Offset Program, either by linking that program to the permanent appropriation for refunds due under the IRC… or otherwise.

…Congress thereby manifested its intent that the Section 1402 Offset Program be funded by temporary appropriations, if at all, and that no Section 1402 Offset Program payments be made absent such a temporary appropriation.

Congress has not enacted any temporary appropriation for the Section 1402 Offset Program, and defendants cannot imply from mere authorizing the language in ACA § 1402 the authority to expend funds. Moreover, defendants cannot convert ACA § 1402 into a permanent appropriation by executive fiat or unilateral action…

…WHEREFORE, the House prays that the Court (i) declare that defendants’ Section 1402 Offset Program payments to Insurers violate the ACA, and (ii) enjoin defendants Lew and the Treasury Program from making any additional Section 1402 Offset Program payments to Insurers unless and until a law appropriating such payments is enacted in accordance with Article I.

COUNT V: Section 1402 Offset Program Payments to Insurers Violate the Administrative Procedure Act

…WHEREFORE, the HOUSE prays that the Court (i) declare that defendants’ Section 1402 Offset Program payments to Insurers violate the APA, and (ii) enjoin defendants Lew and the Treasury Department from making any additional Section 1402 Offset Program payments to Insurers unless and until a law appropriating funds for such payments is enacted in accordance with Article I of the Constitution.

COUNT V: Section 1402 Offset Program Payments to Insurers Violate the Administrative Procedure Act

…The House has no adequate or available administrative remedy, and/or any effort to obtain an administrative remedy would be futile.

WHEREFORE, the House prays that the Court (i) declare that defendants’ Section 1402 Offset Program payments to Insurers violate the APA, and (ii) enjoin defendants Lew and the Treasury Department from making any additional Section 1402 Offset Program payments to Insurers unless and until a law appropriating funds for such payments is enacted in accordance with Article I of the Constitution.

Count VI: Treasury Rule pmbl. § XV.D.6.a(1)ViolatesArticle I, Section 1and Article I, Section 7, Clause 2 of the Constitution

…Defendants Lew and the Treasury Department may not amend or repeal any provisions of the ACA.

By virtue of Treasury Rule pmbl. § XV.D.6.a(1), defendants Lew and the Treasury Department effectively have amended section 1513(d) of the ACA, which provides that “[t]he amendments made by this section shall apply to months beginning after December 31, 2013″…

…By thus effectively amending section 1513(d) of the ACA, defendants Lew and the Treasury Department have violated the Constitution, in particular, Article 1, section 1, which vests Congress “[a]ll legislative Powers,” and Article I, section 7, clause 2, requiring passage by both the House and Senate, and then presentment to the President…

…WHEREFORE, the House prays that the Court declare that Treasury Rule, pmbl. § XV.D.6.a(1) violates Article I, section 1, and Article I, section 7, clause 2 of the Constitution.

COUNT VII: Treasury Rule, pmbl. § XV.D.7.a Violates Article I, Section 1and Article I, Section 7, Clause 2 of the Constitution

…By effectively amending section of the IRC, defendants Lew and the Treasury Department have violated the Constitution, in particular, Article I, section 1, which vests in the Congress “[a]ll legislative Powers,” and Article I, section 7, clause 2, requiring passage by both the House and the Senate and then presentment to the President…

…WHEREFORE, the House prays that the Court declare that Treasury Rule, pmbl. § XV.D.7.aviolatesArticle I, section 1 and Article I, section 7, clause 2 of the Constitution.

COUNT VIII: Treasury Rule, pt. 54, §§ 54.4980H-4(a), 54.4980H-5(a) Violate Article I, Section 1 and Article I, Section 7, Clause 2of the Constitution

…By virtue of Treasury Rule, pt. 54, §§ 54.4980H-4(a), 54.4980H-5(a), defendants Lew and the Treasury Department effectively have amended section 4908H of the IRC, which mandates that applicable large employers offer affordable coverage to all of their FTEs to avoid the tax penalties imposed by 4908H(a)-(b).

By effectively amending section 4908H of the IRC, defendants Lew and the Treasury Department have violated the Constitution, in particular, Article I, section 1, which vests in the Congress “[a]ll legislative Powers,” and Article I, section 7, clause 2, requiring passage by both the House and the Senate, and then to the President…

…WHEREFORE, the House prays that the Court declare that Treasury Rule pt. 54, §§ 54.4980H-4(a), 54.4980H-5(a)violate Article I, section 1 and Article I, section 7, clause 2 of the Constitution…

On September 9, 2015, United States District Judge Rosemary M. Collyer, issued her ruling.

The ruling is 43 pages long. I will be posting the most important parts here.

MEMORANDUM OPINION

Article I of the United States Constitution established Congress, which comprises a House of Representatives and a Senate. U.S. Const. art. I, § 1. Only these two bodies, acting together, can pass laws – including laws necessary to spend public money. In this respect, Article I is very clear: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…

…Through this lawsuit, the House of Representatives complains that Sylvia Burwell, the Secretary of Health and Human Services, Jacob Lew, the Secretary of the Treasury, and their respective departments (collectively the Secretaries) have spend billions of unappropriated dollars to support the Patient Protection and Affordable Care Act. The House further alleges that Secretary Lew and Treasury have, under the guise of implementing regulations, effectively amended the Affordable Care Act’s employer mandate by delaying its effect and narrowing its scope.

The Secretaries move to dismiss, arguing that the House lacks standing to sue. They argue that only the Executive has authority to implement the laws, and urge this Court to stay out of a quintessentially political fight in which the House is already well armed. They House opposes, adamant that it has been injured in several concrete ways, none of which can be ameliorated through the usual political processes.

The only issue before the Court is whether the House can sue the Secretaries; the merits of this lawsuit await another day. Although no precedent dictates the outcome, the case implicates the constitutionality of another Branch’s actions and thus merits an “especially rigorous” standing analysis…

The House sues, as an institutional plaintiff, to preserve its power of the purse and to maintain constitutional equilibrium between the Executive and the Legislature. If its non-appropriation claims have merit, which the Secretaries deny, the House has been injured in a concrete and particular way that is traceable to the Secretaries and redeemable in court. The Court concludes that the House has standing to pursue those constitutional claims.

In contrast, the House’s claims that Secretary Lew improperly amended the Affordable Care Act concern only the implementation of a statute, not adherence to any specific constitutional requirement. The House does not have standing to pursue those claims. The Secretaries’ motion to dismiss will be denied as to the former and granted to the latter…

Statutory Overview

The 111th Congress enacted the Patient Protection and Affordable Care Act… “to increase the number of Americans covered by health insurance and decrease the cost of health care”… No party disputes here whether the ACA was validly adopted by both houses of Congress and signed into law by the President…

CONCLUSION

The House of Representatives has standing to pursue its allegations that the Secretaries of Health and Human Services and the Treasury violated Article I § 9, cl. 7 of the Constitution when they spent public monies that were not appropriated by the Congress. The Secretaries hotly disputed that any violation has occurred, maintaining that the Section 1402 “cost sharing reduction payments are being made as part of a mandatory payment program that Congress has fully appropriated.”… The Court stresses that the merits have not been briefed or decided; only the question of standing has been determined.

The Secretaries’ motion to dismiss Dkt. 20, will be granted in part and denied in part. The following Counts of the Complaint will be dismissed: II, III, IV, V, in pat, VI, VII, and VIII. Count I remains, as does Count V (to the extent predicated on a constitutional violation). Furthermore, the House’s motion to strike, Dkt. 38, will be denied. The parties will be directed to meet, confer, and file a proposed schedule for briefing dispositive motions…

On September 25, 2015, HuffPost posted an article titled: “With John Boehner Gone, It’s Time For The House To Drop Its Obamacare Lawsuit”. It was written by Cristian Farias. From the article:

The seismic announcement that House Speaker John Boehner (R-Ohio) will resign at the end of October brings a fresh focus on the House’s federal lawsuit against the Obama administration over certain funding provisions in the Affordable Care Act.

Boehner scored a win earlier this month when U.S. District Judge Rosemary Collyer allowed the suit to move forward. At the time, he thanked the court for allowing him to challenge President Barack Obama’s “historic overreach” – arguing, essentially, that the government usurped Congress’ constitutional “power of the purse” by spending money lawmakers never approved of.

That’s the bottom line of Boehner’s case, and its a serious charge that litigation could ultimately prove.

But Collyer’s ruling had nothing to do with that. All it decided was whether the House had “standing” to sue another branch of government. Standing is a basic constitutional requirement every litigant must meet, but legal scholars are deeply skeptical that an “institutional plaintiff” like the House can do so. Therefore, the government is now seeking an expedited review of Collyer’s ruling by a higher court.

In court papers this week, lawyers for the Obama administration called Collyer’s ruling ruling a “momentous step,” and argued that letting it go unchallenged would greatly damage the separation of powers, opening the door to a flurry of lawsuits between Congress and the president over political questions – with federal courts acting as referees…

…These signs point to a bruising loss for the House on the preliminary issue of standing, for which the Obama administration has a very strong claim on appeal. With Boehner on his way out, the House legal team would be wise to do early damage control and drop this ill-advised lawsuit once and for all.

On October 24, 2014, Politico posted an article titled: “What happened to that GOP lawsuit?” It was written by Josh Gerstein. From the article:

…House Speaker John Beohner came out swinging hard last June when he announced that his chamber would take President Barack Obama to court. The suit, charging that the president grossly exceeded his constitutional authority by failing to implement portions of the Obamacare law, was billed as an election-season rallying point for aggrieved Republicans. but days before the midterms, the House’s legal guns seem to have fallen silent.

Lawyers close to the process said they originally expected the legal challenge to be filed in September, but now they don’t expect any action before the elections…

…Whatever the reason, the delay means the core of the suit could effectively be moot before the Obama administration even has to respond to it in court. The case was expected to center on an employer mandate provision that Obama twice delayed but is now set to kick in for many employers on Jan. 1…

…While early on Boehner said that the suit would focus on a delay Obama ordered in enforcement of the law’s employer mandate, sources say lawyers are now considering expanding the case beyond the originally announced subject because the mandate is likely to soon start to go into effect and because there might be more effective targets.

The employer mandate requirement is set to kick in for large employers in January, although the administration says it won’t enforce the requirement for employers with 50 to 100 employees until 2016. The federal government ordinarily has 60 days to file a former answer to litigation, meaning that much of the mandate is likely to be in effect by the time anyone has to address the suit in court, let alone by the time the suit is resolved….

On May 12, 2016, United State District Judge Rosemary M. Collyer heard the case again in the United States District Court for the District of Columbia.

This time, the plaintiff was the U.S. House of Representatives. The defendant was Sylvia Matthews Burwell in her official capacity as Secretary of the United States Department of Health and Human Services.

This case was heard after King v.Burwell was decided. That’s how long it took this case to go through the Court system. As such, this opinion references King v. Burwell.

The opinion of the Court is 38 pages long. I will post the most significant parts here.

OPINION

This Court previously held that the U.S. House of Representatives “has standing to pursue its allegations that the Secretaries of Health and Human Services and of the Treasury violated Article I, § 9, cl. 7 of the Constitution when they spent public monies that were not appropriated by the Congress”… The merits of that claim are now before the Court.

The case involves two sections of the Affordable Care Act: 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost-sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credits and refunds. Section 1402 was not added to that list. The question is whether Section 1402 can nonetheless be funded through the same, permanent appropriation. It cannot.

“If the statutory language is plain, we must enforce it according to its terms.” King v Burwell, 135 S. Ct. 2480, 2489 (2015). Although the “meaning – or ambiguity – of certain words or phrases may only become evident when placed in context,” id. the statutory provisions in this case are clear and in isolation and in context. The Affordable Care Act unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers. Such an appropriation cannot be inferred.

None of Secretaries’ extra-textual arguments – whether based on economics, “unintended” results, or legislative history – is persuasive. The Court will enter judgement in favor of the House of Representatives and enjoin the use of unappropriated monies to fund reimbursements due to insurers under Section 1402. The Court will stay its injunction, however, pending appeal by either or both parties…

…Standing

The Secretaries invite the Court to revisit its standing analysis. … “Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation” …

…The Secretaries believe that they have proven this case to be only about statutory interpretation and implementation… This argument was raised in their motion to dismiss… (“In short, the House has described two relatively straight-forward differences of opinion between the Legislative and Executive Branches as to the interpretation of federal law.”) and addressed the Court’s prior opinion… (“The Secretaries’ primary defense will be that an appropriation has been made, which will require reading the statute. But that is an antecedent determination to a constitutional claim.”).

The Court has not changed its mind. While it is true that the Secretaries’ defense in this case requires interpreting federal statues, the House of Representatives’ claim under the Appropriation’s Clause does not. … (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”) Instead, the interpretation of a federal statute only becomes necessary when a defendant raises a statute as a defense. Such a defense does not turn a constitutional claim into a statutory dispute. The House’s injury depends on the Constitutional and not on the U.S. Code. The Secretaries’ standing argument will be denied.

CONCLUSION

The Court will grant summary judgement to the House of Representatives and enter judgement in its favor. The Court will also enjoin any further reimbursements under Section 1402 until a valid appropriation is in place. However, the Court will stay its injunction pending any appeal by the parties…

On May 16, 2016, SCOTUSblog posted an article titled: “Judge: Billions spent illegally on ACA benefits”. It was written by Lyle Denniston. From the article:

The often-challenged Affordable Care Act suffered a potentially crippling constitutional blow in federal court on Thursday, when a trial judge in Washington D.C., ruled that the government had wrongly spent billions of dollars in the past two years to reimburse insurance companies for providing health coverage at lower costs to low- and moderate-income consumers.

U.S. Judge Rosemary M. Collyer, in a thirty-eight page ruling upholding a constitutional challenge pursued by the U.S. House of Representatives, did not take any immediate action to stop that spending. Instead, she put her decision on hold to allow it to be challenged in an appeal – either to a federal court of appeals or directly to the Supreme Court.

It seems quite unlikely that the dispute will be finally settled before President Barack Obama’s term ends in January. The near-term future and ultimate fate of the entire ACA program probably depends on the outcome of this year’s presidential election, in which it has already been a major issue…

…There is no doubt that the administration will pursue an appeal of Collyer’s new ruling because this particular controversy goes to the heart of whether the private insurance industry will remain willing to provide lower-cost health coverage through the ACA exchanges, or marketplaces, that have now enrolled millions of consumers.

At issue in the case, as decided on Thursday, was part of the ACA program that required insurance companies to provide coverage to low- and moderate-income consumer, mainly through policies sold on the exchanges, with the costs to the consumers lowered by reduced co-pays and back-up or co-insurance, along with lower deductibles. The insurance companies, however, do not have to absorb those costs; the ACA mandated that the government directly reimburse such “cost-sharing” arrangements, with federal funds.

Along with that part of the ACA, the law also provided tax credits to consumers at low or moderate income levels to help them afford the premiums charged for the insurance they obtained on the exchanges.

Together, the two programs were estimated to cost the government about $5 billion a year. In her new ruling, Collyer decided that the cost-sharing program, as implemented since January 2014, has been spending money that Congress did not approve. It is unconstitutional, she ruled, because no money can be taken out of the federal treasury if it has not been specifically provided by act of Congress…

King v. Burwell

The full name of this case is: David King, et al, Petitioners, vs. Sylvia Burwell, Secretary of Health and Human Services, et al.

This case was argued on March 4, 2015. The Supreme Court released their decision on June 25, 2015.

On March 4, 2015, Bustle posted an article titled: “Who is David King, The SCOUTS Obamacare Plaintiff?” It was written by Chris Tognotti. From the article:

Right now, the health insurance plans of millions of American hang in the balance as the Supreme Court considers King v. Burwell, a challenge to the law’s system of federal subsidies. It’s the high court challenge that conservatives have eagerly awaiting, the first major threat to President Obama’s signature achievement since the Supreme Court upheld the law 5-4 back in 2012. With so much on the line, it makes sense that people want to know a little about the figures involved. So, who is the lead plaintiff in King v. Burwell? Why, it’s King, of course – David King, a 64-year-old Virginia man with anti-Obama views who wants to bring the whole Affordable Care Act down, if he can…

….Here’s the basic idea: thanks to the subsidies built into the health care law, King was able to purchase health care at less than half the cost it would have been otherwise – the full cost would have been $648 per month, but $373 of that would have been subsidized. This is despite the fact that Virginia’s GOP-led state government refused to implement a health insurance exchange after the law’s passage – when that happens, the federal government’s insurance exchanges have filled the gap, and subsidized the plans.

Ah, but here’s the rub. King didn’t want to have health insurance, but was forced to by virtue of Obamacare’s individual mandate. I know what you might be thinking – you sometimes hear about healthy, cavalier young people wanting to forgo coverage, but why is a man in his mid-60s so confident that he won’t need medical care? This is a question, I presume, that he himself must know the answer to…

…In any case, King was frustrated, especially by the fact that it the subsidies didn’t exist, he wouldn’t have to buy health insurance. Given that the full, adjusted cost of his plan would have been $648, and he earned $39,000 per year as a limo driver, he would’ve been granted an exemption from the mandate if the subsidies weren’t in effect. At the post-subsidy $275 per month cost, however, he was on the hook to get covered. So he and a handful of fellow plaintiffs decided to sue over the subsidy system itself, arguing for a woefully narrow interpretation of the law which says that only state-run exchanges can deliver subsidies…

The Supreme Court heard the King v. Burwell case argued on March 4, 2015. They released their decision on the case on June 25, 2015. Here is the syllabus of the decision:

The Patient Protection and Affordable Care Act grew out of a long history of failed health insurance reform. In the 1990s, several States sought to expand access to coverage by imposing a pair of insurance market regulations – a “guaranteed issue” requirement, which bars insurers from denying coverage to any person because of his health, and a “community rating” requirement, which bars insurers from charging a person higher premiums for the same reason. The reforms achieved the goal of expanding access to coverage, but they also encouraged people to wait until they got sick to buy insurance. The result was an economic “death spiral”: premiums rose, the number of people buying insurance declined, and insurers left the market entirely.

In 2006, however, Massachusetts discovered a way to make the guaranteed issue and community rating requirements work – by requiring individuals to buy insurance and by providing tax credits to certain individuals to make insurance more affordable. The combination of these three reforms – insurance market regulations, a coverage mandate, and tax credits – enabled Massachusetts to drastically reduce its uninsured rate.

The Affordable Care Act adopts a version of the three key reforms that made the Massachusetts system successful. First, the Act adopts the guaranteed issue and community rating requirements…. Second, the Act generally requires individuals to maintain health insurance coverage or make a payment to the IRS, unless the cost of buying insurance would exceed eight percent of that individual’s income… And third, the Act seeks to make insurance more affordable by giving refundable tax credits to individuals with household incomes between 100 percent and 400 percent of the federal poverty line…

…In addition to those three reforms, the Act requires the creation of an “Exchange” in each State – basically, a marketplace that allows people to compare and purchase insurance plans. The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish “such Exchange” if the State does not… Relatedly, the Act provides that tax credits “shall be allowed” for any “applicable taxpayer”… but only if the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under [42U. S. C. §18031]”… An IRS regulation interprets that language as making tax credits available on “an Exchange”, … “regardless of whether the Exchange is established and operated by a State… or by HHS,”…

Petitioner are four individuals who live in Virginia, which has a Federal Exchange. They do not wish to purchase health insurance. In their view, Virginia’s Exchange does not qualify as “an Exchange established by the State under [42U. S. C. §18031],” so they should not receive any tax credits. That would make the cost of buying insurance more than eight percent of the petitioners’ income, exempting them from the Act’s coverage requirement. As a result of the IRS Rule, however, petitioners would receive tax credits. That would make the cost of buying insurance less than eight percent of their income, and would subject them to the Act’s coverage requirement.

Petitioners challenged the IRS Rule in Federal District Court. The District Court dismissed the suit, holding that the Act unambiguously made tax credits available to individuals enrolled through a Federal Exchange. The Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit views the Act as ambiguous and deferred to the IRS’s interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.

Held: 36B’s tax credits are available to individuals in States that have a Federal Exchange…

(a) When analyzing an agency’s interpretation of a statute, this Court often applies the two-step framework announced in Chevron, 467 U. S. 837. But Chevron does not provide the appropriate framework here. The tax credits are one of the Act’s key reforms and whether they are available on Federal Exchanges is a question of deep “economic and political significance”; had Congress wished to assign that question to an agency, it surely would have done so expressly. And it is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort.

It is instead the Court’s task to determine the correct reading of Section 36B. If the statutory language is plain, the Court must enforce it according to its terms. But oftentimes the meaning – or ambiguity – of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words “in their context and with a view to their place in the overall statutory scheme.”…

…(b) When read in context, the phrase “an Exchange established by the State under 42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchange. But if could also refer to all Exchanges – both State and Federal – for the purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 to establish an Exchange, the Act tells the Secretary of Health and Human Services to establish “such Exchange”… And by using the words “such Exchange,” the Act indicates that the State and Federal Exchanges should be the same.

But State and Federal Exchanges differ in a fundamental way if tax credits were only on State Exchanges – one type of Exchange would help make insurance more affordable by providing billions of dollars to the State’s citizens; the other type of Exchange would not. Several other provisions of the Act – e.g., Section 18031(i)(3)(B)’s requirement that all Exchanges create outreach programs to “distribute fair and impartial information concerning … the availability of premium tax credits under section 36B” – would make little sense if tax credits were not available on Federal Exchanges.

The argument that the phrase “established by the State” would be superfluous if Congress meant to extend tax credits to both State and Federal Exchanges is unpersuasive. This Court’s “preference for avoiding suplusage constructions is not absolute”…. And rigorous application of that canon does not seem to be a particularly useful guide to a fair construction of the Affordable Care Act, which contains more than a few examples of inartful drafting. The Court nevertheless must do its best, “bearing in mind the ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”…

…(c) Given that the text is ambiguous, the Court must look to the broader structure of the Act to determine whether one of Section 3B;s “permissible meanings produces a substantive effect that is compatible with the rest of the law.”… Here, the statutory scheme compels the Court to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid.

Under the petitioners’ reading, the Act would not work in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms – the tax credits – would not apply. And a second major reform – the coverage requirement – would not apply in a meaningful way, because so many individuals would be exempt from the requirement without the tax credits. If petitioners are right, therefore, only one of the Act’s three major reforms would be available in States with a Federal Exchange.

The combination of no tax credits and an ineffectual coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirements and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well…

…(d) The structure of Section 36B itself also suggests that tax credits are not limited to State Exchanges. Together, Section 36B(a), which allows tax credits for any “applicable taxpayer,” and Section 36B(c)(1), which defines that term as someone with a household income between 100 percent and 400 percent of the federal poverty line, appear to make anyone within the specified income range eligible for a tax credit.

According to petitioners, however, those provisions are an empty promise in States with a Federal Exchange. In their view, an applicable taxpayer in such a State would be eligible for a tax credit, but the amount of that tax credit would always be zero because of two provisions buried deep within the Tax Code. That argument fails because Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions”…

(e) Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid… Affirmed.

Zubik v. Burwell

SCOTUSblog states that this case was argued on March 23, 2016, and the opinion was given on May 16, 2016.

David A. Zubik is the bishop of Pittsburgh, Pennsylvania. Sylvia Mathews Burwell was the Secretary of Health and Human Services (HHS).

On April 18, 2016, USA Today posted an article titled “The Zubik v. Burwell case, explained”. It was written by Carter Barrett. From the article:

…It centers on an exemption to the Affordable Care Act’s legal requirement that employers must cover contraception costs without charging copays. Certain employers… …can opt out, but to do so the employer must fill out a two-page form explaining why.

The plaintiffs of Zubik v. Burwell argue they should not have to fill out forms because doing so makes them complicit in providing women with contraception which goes against their religious convictions…

…The case will ultimately affect the health of millions of women, including college-aged women.

Students who are enrolled in health-care plans through their universities may be unable to get birth control if their school elects to opt-out for religious reasons. And graduates will have to consider how they’ll receive birth control coverage if their employer is opposed to offering ti for the accepted reasons.

Ultimately, affected women would have to go through a more complicated process to secure birth control…

…Under the Affordable Care Act – commonly known as Obamacare – employers’ insurance plans are legally required to cover contraceptive costs without charging copays.

But since some religions, like Catholicism, are morally opposed to the use of contraception, the Obama administration made two exceptions to the mandate:

1 Churches and houses of worship are entirely exempt from offering contraceptive coverage.

2 If non-profit religious organizations — such as hospitals, charities and higher education institutions – or for-profit organizations with a limited number of shareholders (i.e. “closely held”) do not want to pay for employees’ contraception for religious reasons, they can fill out a two page form explaining why it wants to opt out of doing so. From there, the organization’s insurer takes over. It can either work with employees directly to provide no-cost contraception coverage or locate a third-party to do so.

The plaintiffs’ argument that they should not have to fill out forms is rooted in the Religious Freedom Restoration Act of 1993, which prevents the government from placing a “substantial burden” — in this case, paperwork — on religious beliefs.

Ultimately, the case will decide whether or not requiring such employers to complete the opt-out paperwork does, in fact, place a “substantial burden” on their religious beliefs…

Zubik v. Burwell had the following, similar cases rolled into it: Priests for Life v. Burwell; Southern Nazarene University v. Burwell; Geneva College v Burwell; Roman Catholic Archbishop of Washington v. Burwell; East Texas Baptist University v Burwell; and Little Sisters of the Poor Home for the Aged v. Burwell.

Justia posted the Per Curiam opinion of the Supreme Court on Zubik v. Burwell:

Per Curiam,

Petitioners are primarily nonprofit organizations that provide health insurance to their employees. Federal regulations require petitioners to cover certain contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107Stat. 1488, 42 U. S. C. §2000bb et seq.

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employers through petitioners’ insurance companies, without any such notice from petitioners.” … Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage of some or all forms of contraception,” even if their employees receive cost-free contraception from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Supplemental Brief for Respondents 14-15.

In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgements below and remands to respective United States Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the position of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage…. We anticipate that the Court of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance. Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them. This Court has taken similar action in other cases in the past. See, e.g., Madison County v. Oneida Indian Nation of N. Y., 562 U. S. 42, 43 (2011) (per curiam) (vacating and remanding for the Second Circuit to “address, in the first instance, whether to revisit its ruling on sovereign immunity in light of [a] new factual development, and—if necessary—proceed to address other questions in the case consistent with its sovereign immunity ruling”); Kiyemba v. Obama, 559 U. S. 131, 132 (2010) (per curiam) (vacating and remanding for the D. C. Circuit to “determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments”); Villarreal v. United States, 572 U. S. ___ (2014) (vacating and remanding to the Fifth Circuit “for further consideration in light of the position asserted by the Solicitor General in his brief for the United States”).

The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are at the least restrictive means of serving that interest.

Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.”… Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.”… Nothing in this opinion, or in the opinions or orders of the courts below “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage” going forward. … Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.

The judgements of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Sotomayor, and Justice Ginsberg, joined in a concurring opinion.

I join the Court’s per curiam opinion because it expresses no view on “the merits of the cases,” “whether petitioners’ religious exercise has been substantially burdened,” or “whether the current regulations are the least restrictive means of serving” a compelling governmental interest… Lower courts, therefore, should not construe either today’s per curium or our order of March 29, 2016, as signals of where this Court stands. We have included similarly explicit disclaimers in previous orders. See, e.g., Wheaton College v. Burwell, 573 U. S. ___ (2014) (“[T]his order should not be construed as an expression of the Court’s views on the merits”). Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc., v. Department of Health and Human Servs., 801 F. 3d 927, 944 (CA8 2015) (“[I]n Wheaton College, Little Sisters of the Poor, and Zubik,the Supreme Court approved a method of notice to HHS that is arguably less onerous than [existing regulations] yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests”). On remand in these cases, the Courts of Appeals should not make the same mistake.

I also join the Court’s opinion because it allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage “to petitioners’ employees, through petitioners’ insurance companies, without any … notice from petitioners.” … The opinion does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that their contraceptive coverage must be provided through a “separate policy, with a separate enrollment process.” … Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation… Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventative-care coverage under the Affordable Care Act, And requiring that women affirmatively opt into such coverage would “impose precisely the kind of barrier to the delivery of preventative services that Congress sought to eliminate….

…Today’s opinion does only what it says it does: “afford[s] an opportunity” for the parties and Courts of Appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the Government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice…. As enlightened by the parties’ new submissions, the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.

Roberts, C.J., delivered the opinion of the court, which Kennedy, Ginsburg, Breyer, Sotomayor, Kagan, JJ,” joined. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.


The ACA is Here to Stay! is a post written by Jen Thorpe on Book of Jen and is not allowed to be copied to other sites.

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