SCOTUS Issues Non-Ruling in Zubik v. Burwell


    By Hadley Heath

    Today the Supreme Court issued this unsigned opinion in Zubik v. Burwell, the consolidated case brought by religious non-profits to challenge the Affordable Care Act's birth control mandate. The opinion essentially sends the issue back to lower (appellate) courts, with instructions to find a compromise agreeable to all parties. 

    This opinion represents an important victory for the petitioners. With the passing of Justice Scalia, there were few likely outcomes that would have served the law's challengers better than this one. The most likely outcome would have been a 4-4 rulling, which would have allowed the lower courts' rulings to stand. Most of the lower courts had sided with the federal government. But today's opinion vacates those prior rulings and instructs the 3rd, 5th, 10th, and D.C. Circuits to try again.

    From the opinion:

    Given the gravity of the dispute and the substantial clarification and refinement in the positions 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."

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    U.S. House Wins at District Level in House v. Burwell


    By Hadley Heath

    The U.S. House won an important victory today at the district level in House v. Burwell. This case started with several claims from the legislative branch that the executive branch was overstepping its authority in the ways it was implementing the Affordable Care Act or ObamaCare. The ruling in the case came down to the cost-sharing subsidies that the Obama Administration sent out to insurance companies, which Judge Rosemary Collyer declared illegal. These subsidies were never appropriated by Congress. Here is a statement from the Independent Women's Voice that explains more:

    "A federal judge has ruled that the Obama administration cannot violate the rule of law and illegally spend tens of billions of dollars to prop up its failing health care program. Despite the clear letter of the law, the Obama administration has been blatantly violating the Constitution’s Separation of Powers in paying cost-sharing subsidies without an appropriation from Congress, spending that would total $130 billion over 10 years.

    "U.S. District Court Judge Rosemary M. Collyer called a halt to the Obama Administration illegal funding of this ObamaCare subsidy program. Contrary to the headlines, low-income people will continue to qualify for more generous coverage since the judge stayed her order pending an inevitable appeal. It is Big Insurance that will not be paid additional taxpayer money since – and this is not a small detail – Congress never appropriated funding for this blank check to insurance companies.

    "This decision is a win for American citizens who have been devastated by ObamaCare's premium hikes, insurance cancellations, and reduced choices. By refusing to allow the Administration to throw good money after bad to prop up its already-failing program, this will only hasten the much needed reconsideration of legislation to repeal and replace ObamaCare to make better health care broadly and affordably available. And it is a timely reminder that this is not a monarchy, but a democracy, and there are limits to executive power."

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    Challengers in Zubik File Further Briefs


    By Hadley Heath

    The Supreme Court did something surprising last month -- Justices asked challengers in Zubik v. Burwell to file briefs examining other ways that women might access contraception if the Affordable Care Act's mandate were not applied to them (non-profit religious employers). Today, those challengers filed their briefs.

    This is clearly connected to the Religious Freedom Restoration Act, the law that Justices use to balance government (public) interests against religious liberty concerns. The RFRA says that government action can only burden someone's religious freedom if the government is acting toward a compelling public interest and acting by the least restrictive means to that end. This last part is where the government lost its case against Hobby Lobby, because Justices were not convinced that the birth-control mandate was the least restrictive way to make sure women had access to contraception (a public interest).

    Remember, Zubik is different from Hobby Lobby because challengers in Zubik have been offered an "accommodation" under the mandate. Under the accommodation, non-profit employers must file some paperwork, essentially referring their workers to a third party to provide the coverage for the offending forms of contraception. 

    Counsel for some of the challengers at Alliance Defending Freedom had this to say about the situation:

    "The Supreme Court asked if any way exists to offer contraceptive and abortifacient coverage without making Christian schools, nuns, and priests complicit in providing them. The answer we gave the court today is yes. There are many ways in which all women could receive cost-free contraceptive coverage that wouldn’t require involvement by religious non-profit groups. The government could offer separate avenues for contraception coverage that do not hijack the non-profits’ insurance plans. The Supreme Court should rule in favor of the non-profits in light of the numerous means the government has to achieve its objectives without violating anyone’s religious liberty.”

    The Court is expected to rule on this case this summer.


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    Justice Scalia's Legacy in ACA Cases


    By Hadley Heath

    Supreme Court Justice and conservative legal mastermind Antonin Scalia passed away on February 13. His legacy runs far and wide and deep, touching a host of legal issues. On the HealthCareLawsuits blog, we will flag a few ways Scalia impacted the Supreme Court cases related to the Affordable Care Act:

    In 2012, Scalia dissented with the majority (5-4) that upheld the ACA's individual mandate. He sided with six other justices to rule that the law's Medicaid expansion should be optional for states.

    In 2014, Scalia joined the majority (5-4) to rule against the government in the Hobby Lobby case on the law's contraception mandate.

    In 2015, Scalia authored the dissenting opinion in King v. Burwell, the case that upheld (5-4) the ACA's subsidies and tax credits. The Cato Institute's Michael Cannon writes about Scalia's dissent:

    While the majority dismissed or expressly refused to consider parts of the ACA that contradicted its interpretation, Scalia took the time to examine every argument and the entire statute. He methodically and efficiently debunked each argument the majority offered for ignoring what everyone knows the law says. He showed how the majority’s interpretation directly conflicts with multiple provisions of the ACA, including the operative text and the provisions the majority conveniently refused to consider. He famously, colorfully, and characteristically described the majority’s reasoning as interpretive jiggery-pokery” and “pure applesauce.” 

    This year, as the Court examines a case similar to Hobby Lobby, Scalia's vote will be sorely missed. The Little Sisters of the Poor case (which has now been combined with other similar cases) will be heard before the Court on March 23. Should the Court rule 4-4 on this case in Scalia's absence, then the lower court rulings on this issue will stand. The Little Sisters lost their case at the 10th Circuit, so a 4-4 ruling at the Supreme Court would essentially mean a loss for them. 

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    "Little Sisters" Special Guests at SOTU


    By Hadley Heath

    Sisters Loraine Marie Maguire and Constance Veit, members of the order "Little Sisters of the Poor" will attend President Obama's final State of the Union address, even as their order fights with the Obama Administration in court. The Sisters will be guests of House Speaker Paul Ryan.

    Most recently the Little Sisters, along with other petitioners suing over the so-called "birth control mandate," filed a brief with the Supreme Court, who will hear their case this year. Their case centers on an accommodation that the Administration offered to some religious groups on the mandate. Churches and houses of worship can be exempted entirely, but other religious non-profits, like the Little Sisters (a group of nuns who care for elderly and dying patients) can only be "accommodated." The Sisters and other petitioners explain that the government should not be in the business of deciding which religious groups are "religious enough" for the exemption, and that the accommodation still forces them to violate their deeply-held religious groups, as they are party to the process by which their employees could access contraceptives that they find morally objectionnable. 

    The Independent Women's Forum, the organization behind, has filed an amicus brief, siding with petitioners.  

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