"During oral arguments in the Supreme Court challenge to the individual mandate, NFIB v. Sebelius, the plaintiff’s lawyer Paul Clement warned the justices not to make the same mistake they made in the 1970s with Buckley v. Valeo. In Buckley,the Court upheld portions of the post-Watergate campaign-finance reforms while invalidating others. The result was a muddled statute that Congress and the courts would repeatedly revisit for years to come. Repeating this approach with the Patient Protection and Affordable Care Act, Clement cautioned, could produce similar undesirable results. It’s too soon to know how quickly Congress will revisit the PPACA, but Clement’s warning already seems to be coming true in the courts.
NFIB may have upheld the individual-mandate penalty as a tax, but it hardly ended the legal debate over Obamacare. More than three months after the Court’s decision, over three dozen legal challenges to the PPACA or its implementation are pending in federal courts, and more are sure to come. Some of these suits were filed by the law’s ideological opponents, others by companies and groups wary of how the sprawling reforms will affect their economic interests. And while some of these lawsuits raise implausible claims, others are likely to have a significant effect on the PPACA, or whatever parts of it Congress and the winner of this election leave in place.
The largest set of PPACA cases are the various challenges to HHS’s contraception mandate, under which employer-provided group-insurance plans must cover all forms of FDA-approved contraception and sterilization procedures. According to the federal government, this mandate is necessary to implement the Obamacare requirement that insurers cover preventive-care services without cost-sharing, but many religious groups have objected on the grounds that this would force religiously affiliated employers to pay for services that violate their religious convictions. They contend that such a mandate contravenes the Religious Freedom Restoration Act of 1993 (RFRA), if not the First Amendment’s protection of religious practice too. In response, the administration said it would find some way to accommodate religious institutions, but then went ahead and finalized the mandate as originally proposed.
The religious institutions concerned about the mandate were not convinced, and many have gone to court.According to the Becket Fund, more than 30 cases pursuing RFRA and constitutional claims against the mandate are pending in federal court. These cases present a serious challenge to the mandate, for reasons Ed Whelan has explained, and it’s unlikely that any accommodation other than a blanket exemption for religious groups will make these claims go away. It is difficult (if not impossible) to mandate contraception coverage without forcing many religious institutions, such as religiously affiliated hospitals and colleges, to pay for it. HHS Secretary Kathleen Sebelius has suggested such costs could just be shifted to insurers, but religious institutions that self-insure, as many companies do, would still have to pay directly for contraception."