by Richard Wolf, USA TODAY
WASHINGTON - President Obama's health care law isn't out of the legal woods yet.
months after surviving the Supreme Court by the slimmest of margins,
the law still faces lower court challenges to its insurance purchasing
mandates, tax penalties, Medicare cost controls, minimum coverage
provisions and more.
The cases pose less of a threat to the law
than the challenges mounted by 26 states and business organizations last
spring. However, the justices' 5-4 ruling to uphold the law on narrow
grounds indicated festering opposition both inside and outside the
court. That makes a return trip to the high court a possibility in the
The latest indication came last month, when the court gave
new life to a lawsuit filed by Liberty University in Virginia, a
religious institution that objected to the employer and individual
mandates for purchasing insurance. The school is one of many religious
organizations that object to the inclusion of birth control among the
benefits that must be covered.
About 40 lawsuits are challenging
the contraception mandate on religious grounds. They come mostly from
church-affiliated schools and hospitals opposed to abortion. While the
Obama administration in February sought to exempt faith-based groups
from having to provide the coverage directly, self-insured employers say
they have little choice.
"This is a pressing question that needs
to be addressed," says Mathew Staver, dean of the Liberty University
School of Law. "It will be a historic clash between the free exercise of
religion and a federal law."
Victory on that count could free
religious groups that object to covering contraceptives from the law's
minimum coverage requirement. The heart of the law - expanding
affordable health coverage to millions of Americans and requiring most
individuals and large employers to buy insurance - would stand.
that could threaten the entire law haven't advanced as far. Experts say
they have less chance of reaching the Supreme Court and toppling
Obama's signature domestic policy achievement.
"The cases that
challenge the act seem unlikely to present issues that are worthy of
Supreme Court review," says Robert Weiner, a former associate deputy
attorney general who led the administration's defense of the health care
law. "The tough challenges to the statute have been litigated already.
The remaining ones are the leftovers."
Among the cases now in federal courts:
The Goldwater Institute, a conservative think tank and legal advocacy
organization in Arizona, claims that the law's Independent Payment
Advisory Board violates the Constitution's separation of powers clause.
appointed board, which is designed to hold down Medicare costs, is not
subject to congressional oversight or even "meaningful agency review,"
says Christina Sandefur, a lawyer with the institute.
institute also contends that to avoid taxation, individuals have to buy
insurance and thereby disclose medical information to insurers and the
federal government. That represents an undue burden on liberty and
privacy, Sandefur says.
-- A suit filed by the Pacific Legal
Foundation, another conservative advocacy group, notes that the law only
survived the Supreme Court because Chief Justice John Roberts said its
penalties for not buying insurance were taxes. Tax laws, the group
notes, must originate in the House, not the Senate.
care law was written in the Senate, but with a twist. Lawmakers took a
House bill, stripped it of its title and all its provisions, and
substituted the health care law.
"We've got to take what we have
and attack it under whatever constitutional provision allows us to,"
says Paul Beard, a foundation attorney. If federal courts buy that
argument, he says, "I think the whole thing would have to fall."
Oklahoma is challenging the way the law is being implemented. States
that have refused to create their own health insurance exchanges, or
markets, should not be subject to a provision that subjects employers of
50 or more workers to financial penalties if they don't provide
insurance, Attorney General Scott Pruitt says.
Revenue Service issued that rule in May, even though the health care law
specified only that states with their own insurance exchanges would be
subject to the employer penalties. Pruitt says that's illegal unless
Congress amends the law.
"This is not something that the states
take lightly," Pruitt says. "I think people are for the first time
saying, 'Wow, you mean there's a tax that's going to be assessed against
The Obama administration, while monitoring all the
lawsuits, is more focused on getting insurance purchasing exchanges
created and expanding Medicaid coverage in the states. Some states are
complying, while others are resisting.
"The Supreme Court has
ruled, and the Affordable Care Act is the law of the land," says White
House spokesman Nick Papas. "We remain 100 percent focused on
implementing the law and are confident these remaining cases will be
resolved in our favor."
But the legal wrangling won't go away
soon. Randy Barnett, a Georgetown University law professor whose
contention that the health care law was unconstitutional led to the
original Supreme Court challenge, likens the bevy of new lawsuits to the
idiom "in for a penny, in for a pound."
"I always thought that if
you didn't take out the whole Affordable Care Act, there was then going
to be legal issues having to do with parts of it," Barnett says. "Now
the courts are in for a pound."