The Supreme Court on Monday ordered the Fourth Circuit Court of Appeals to examine the constitutionality of the health reform law’s employer requirements and mandatory coverage of contraceptives without a co-pay.
The move could open the door for President Barack Obama’s health law to be back in front of the Supreme Court late next year.
The Supreme Court responded to a request from Liberty University, one of the groups that sued over the health care law’s individual mandate in 2010. When the court ruled in June that the mandate was constitutional, it dismissed Liberty’s entire lawsuit.
Over the summer, the school asked the Supreme Court to reopen its arguments against the employer mandate and the contraceptive coverage mandate, which it said were not addressed by the court's ruling this summer. The court on Monday agreed to the request and told the Fourth Circuit to hear arguments on the two pieces.
The Fourth Circuit, which traditionally moves quickly, could hear oral arguments in the case next spring.
The school's lawyers have told POLITICO that they hope to eventually bring the suit back before the Supreme Court.
Liberty University argues that the law’s employer coverage provisions — which will require businesses with more than 50 full-time workers to provide health insurance for their workers or face fines — are unconstitutional because Congress overstepped its power by setting those rules.
It also says the individual and employer mandates violate the Constitution's right to a free exercise of religion. The employer mandate is unconstitutional because of the contraception coverage requirement, Liberty argues, claiming that the individual mandate would require individuals to pay for coverage of abortions.
The Justice Department hasn’t responded to the Supreme Court order yet, but it told the court last month that it wouldn’t object to the 4th Circuit taking up the case.
In that brief, Solicitor General Donald Verrilli wrote that Liberty University’s arguments “lack merit” but that the Obama administration wouldn’t oppose a hearing because the issues weren’t fully aired the first time around.
There’s no guarantee that Liberty would succeed in the 4th Circuit. It’s considered one of the most liberal appeals courts in the country, and when a three-judge panel — all appointed by Democratic presidents — punted last year on a ruling on Liberty’s challenge to the individual mandate, two of the three judges hinted that they might have sided with the Obama administration if they had ruled on the merits.
The panel never got that far, because it ruled that the Anti-Injunction Act — a tax law that prevents legal challenges to a tax penalty until it has been paid — meant that the individual mandate couldn’t be challenged yet. The Supreme Court dismissed that view when it upheld the mandate.
But if the 4th Circuit does rule against Liberty, it would give the university an opportunity to take its arguments to the Supreme Court — and try to put the law through yet another legal test.
Carl Tobias, a law professor at the University of Richmond, said he doubted that the judges will agree with the arguments now. But if Liberty’s legal challenge were to make it to the Supreme Court, and the justices sided with Liberty, Tobias said the ruling could damage the law even though most of its central provisions have been upheld.
“I think the employer mandate is important because I think there would be many employers who would not be subject to the act, and that’s a pretty critical provision of the act,” Tobias said. By contrast, he said, the loss of the contraceptive coverage requirement would be less damaging. It’s “important to many people,” he said, but it doesn’t actually affect most people’s coverage — it’s not a “linchpin of the act.”
Liberty University’s lawyers have said that if they’re successful, the Supreme Court could hear arguments in the case in late 2013.
But Timothy Jost, a law professor at Washington and Lee University and a supporter of the Affordable Care Act, predicted earlier this month that “the 4th Circuit will throw this case out, and the Supreme Court is extremely unlikely to grant cert on their decision. They had their shot at the ACA and are unlikely to give it a second look based on much more specious arguments.”
Kathryn Smith and Jason Millman contributed to this report.