President Barack Obama’s health-care law, which survived a test before the U.S. Supreme Court in 2012, is facing new legal challenges that make another high court showdown all but inevitable.
More than 65 lawsuits around the country are targeting key provisions of the Affordable Care Act, from its contraceptive mandate to the Medicare spending-cut mechanism, raising the prospect that the law could be partially dismantled.
“This law is going to be litigated up and down for years,” says Jonathan Adler, who directs the Center for Business Law & Regulation at Case Western Reserve University School of Law in Cleveland. “And the litigation is not going to come exclusively, or necessarily even primarily, from those we might characterize as the law’s opponents.”
The lawsuits are part of the resistance the health-care law continues to face three years after its passage. Republicans in the House today will hold their 40th vote to defund or repeal at least part of the law, and state Republican officials last year came within one Supreme Court vote of overturning the measure. The court upheld the law’s centerpiece, the requirement that people get insurance or pay a penalty, with Chief Justice John Roberts joining the four Democratic appointees in the majority.
The next Supreme Court clash may be over the federal government’s requirement that employer-provided insurance plans include contraceptive coverage. A case involving that issue could reach the high court within a year.
No Flyspecking
“The bill didn’t get to go through the normal flyspecking that a large regulatory statute usually goes through,” Adler says. “You have all these provisions that aren’t written the way people had hoped.”
Pruitt and Carvin (attorneys’) are making an argument that, if successful, would free some people from the penalties that the Affordable Care Act imposes for not carrying coverage.
They say the law makes subsidies available only to people who buy insurance through state-run exchanges, and not to those who use the federal exchange that will operate in more than half the states. A ruling in their favor would abolish the subsidies in much of the country and by extension let more people claim that insurance is unaffordable. Under an exemption in the law, people who can’t afford insurance don’t have to pay the penalty.
Defenders of the law say Congress’s aim was clear — to make subsidies broadly available — even if its wording wasn’t.
Opponents “have yet to come up with a figment of any kind of indication that Congress intended federal exchanges to do anything other than issue premium tax credits,” says Tim Jost, a health-law professor at Washington and Lee University School of Law.
Many state exchanges will be either inoperable or delayed in their required 1-1-2014 start t date. In addition, the insurance carriers providing coverage in the state exchanges that are prepared to offer coverage are showing limited medical providers willing to participate in these programs.
More to come in the next edition.
Chuck Mune, MBA, RHU
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