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Obamacare foes tilt on
Challenges to Obamacare continue

Date published: 12/23/2012

ONE SURE BET for the New Year: Challenges to Obamacare will continue to provide fodder for newspapers and lawyers alike.

President Obama's re-election, while neutralizing some of the opposition to the new law, did not stop all of it. Over 40 lawsuits are meandering through the courts, questioning the law's individual mandate, employer mandate, or both.

One court case comes from Liberty University in Lynchburg. Early on, the school challenged both the individual- and the employer-mandate sections of the bill, claiming that they force individuals and employers to pay for coverage for abortions, violating their consciences. In late November, the U.S. Supreme Court, reversing itself, resurrected Liberty's challenge, sending it back to the 4th Circuit Court for further review. The dean of Liberty's Law School says he expects the case back before the high court in the fall.

The U.S. Department of Health and Human Services has allowed a narrow category of employers (basically, houses of worship) a short-term exemption from the provisions of Obamacare. But many other businesses also object on religious grounds to being forced to comply. Recently, a judge in the District of Columbia Circuit Court allowed an injunction against enforcement of the law in the case of Tyndale House, a for-profit Christian publisher. Likewise, the 8th Circuit has issued an injunction in a challenge by O'Brien Industries Holdings, a company in Missouri with a clear expression of religious faith in its mission statement. In both cases (and in lawsuits filed by many other companies, including Domino's Pizza and Hobby Lobby), the principle is the same: Obamacare, they contend, violates both the First Amendment and the 1993 Religious Freedom Restoration Act.

Other questions about Obamacare persist. For example, when the Supreme Court decided last summer that the individual mandate was a de facto tax, it may have set up one or more internal conflicts in the law. First, by both calling the mandate a "tax" and ruling that states could opt out of the expansion of Medicaid, the court may have set up a challenge to the law based on the Constitution's "Uniformity Clause." It requires that taxes be assessed uniformly across the states. What's more, if the health care plan is a tax, the bill should have, constitutionally, been initiated in the House. But it wasn't--the Senate was the first house of Congress to pass the bill.

The complexities of the 2,700-page Obamacare law continue to unfold, resulting in new legal actions. For court watchers and scholars, 2013 should prove an interesting year.