by Quin Hillyer
Despite all the well-merited attention paid two weeks ago to the Supreme Court case challenging the “individual insurance mandate” in the president’s health-insurance law, the court decision allowing the mandate to be enforced as a “tax” is far from the end of the story. Multitudinous other lawsuits against the law remain outstanding, and at least a few of them still could result in the court invalidating the entire law at a later date.
For informational purposes, then, let’s review the other suits – saving for last the ones that are probably the most emotionally explosive, namely those challenging the “HHS mandate” requiring employers to offer insurance providing (among other things) free sterilization and prescription drugs that can induce abortions.
First, the suit with the largest potential reach – the one perhaps most likely, if the plaintiffs win, to cause the whole law to be invalidated – is a case out of Arizona called Coons v. Geithner. A state think tank called the Goldwater Institute is providing the legal firepower here, while two congressmen are among the plaintiffs. While the lawsuit incorporates challenges to the law on multiple fronts, its most legally explosive issue involves whether something called the Independent Payment Advisory Board (IPAB) is constitutionally permissible.
IPAB is a 15-member body that will be charged with making “detailed and specific proposals related to the Medicare program” in order to achieve significant cost savings. Critics say IPAB’s effect will be to cause serious rationing of health care services for the elderly. Whatever the truth of that allegation, the board is given so many powers, with so little chance for Congress to overturn IPAB’s decisions, that the Goldwater Institute says the board in effect will become a legislature unto itself – and thus violate the Constitution’s requirements that all legislation originate in, and be passed by, Congress.
In short, the suit alleges that IPAB amounts to an illegal “delegation” of legislative powers to an unaccountable board. While the Supreme Court has rarely directly enforced the “non-delegation doctrine,” written opinions by several of the current justices have clearly indicated a willingness to enforce the doctrine if the violation is egregious.
Second, a suit filed by two hospital groups challenges ObamaCare’s limits on physician-owned hospitals. By allegedly discriminating against doctors, the provision in question could have the practical effect of adding to the law’s already numerous disincentives for people to pursue medical careers at all. Even if the hospitals succeed in overturning this provision, it is almost certain that it wouldn’t kill the entire law. Combined with other suits, though, this one could chip away at the public’s perception of the law’s legitimacy.
Third, several conservative legal heavyweights are openly discussing a potential lawsuit, not yet filed, against the federal subsidies for use in the federal health-care “exchanges” that the law sets up as a backstop to the state “exchanges” created by the law. This is a complicated subject, one whose full ramifications will need to await the exact details of any suit, if such a suit is filed at all.
Fourth and most important for people of faith, there are already 23 suits pending (with more perhaps on the way) against the Health and Human Services mandate for covering abortifacient drugs. This is an issue explored in great depth at this web site in the past. A wide coalition of people, from numerous religious faiths and denominations, insists that the HHS mandate amounts to a massive infringement on the free exercise of religion. These critics say that as obnoxious as the mandate is overall, a particular aspect of it makes it even more so. When HHS announced that it would “exempt” churches from the mandate, it defined religious activity so narrowly as to literally make the ministry of Jesus Christ himself not qualify, because the government would not exempt ministries to those outside the denomination or faith. Catholic universities, Baptist hospitals, or any church’s social outreach efforts would still fall under the mandate if they also serve atheists, Jews, Buddhists or others who are impoverished or ill. Therefore, Jesus’ ministry to a Samaritan woman, a Roman centurion, or a Phoenician woman – not to mention scores of lepers of unknown faiths – would not have qualified as “religious” under this rule.
In May, 43 Catholic-related organizations filed 12 different suits against the mandate. Earlier than that, suits had been filed by Belmont Abbey College, by Colorado Christian University, by Ave Maria University, by the Eternal Word Television Network, by Geneva College (Presbyterian), by Louisiana College (Baptist), and others.
Even if these suits are successful, most observers long have thought that they would invalidate only this particular regulation, not the whole law. But some legal analysts picked up on parts of the controlling decision by Chief Justice John Roberts that could be interpreted to lead, logically, to invalidation not just of the regulation, but of the entire design of the requirement that employers provide health insurance. If so, then this again would raise a question of whether the whole law would stand if this entire provision is jettisoned.
Probably not – but critics can always hope.