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SCOTUS Sends Liberty Back to Fourth Circuit

By Robyn Hagan Cain on November 26, 2012 | Last updated on March 21, 2019

Affordable Care Act litigation is a lot like Ghostface in the Scream movies. At the end of each film, you think that you have closure. Then another Scream comes along, proving you wrong.

That's pretty much what we have today with the Supreme Court's decision to remand Liberty University's employer mandate and contraceptive coverage mandate challenges: You may have thought the Court's healthcare decision in June signaled the end of ACA litigation until 2014.

You were mistaken.

Before we get into procedural posturing, let's discuss the claim. Liberty University says that the ACA's employer coverage provisions are unconstitutional because Congress overstepped its power by setting those rules. It also claims the individual and employer mandates violate the Constitution's right to a free exercise of religion because of the contraception coverage requirement, Politico reports. According to Liberty, the individual mandate would require individuals to pay for coverage of abortions.

The Fourth Circuit Court of Appeals rejected Liberty University's individual mandate challenge in September 2011; the appellate court concluded that the claim was not yet ripe, but could be renewed when the ACA becomes effective in 2014. In October, however, the Supreme Court asked the Justice Department to respond to Liberty's request for a new hearing in its appeal.

Solicitor General Donald Verrilli told the Court the University's arguments "lack merit" but the Obama administration wouldn't oppose a hearing because the issues weren't fully aired the first time around, Politico reports.

While it may seem odd for the Justice Department to be open to the appeal, Forbes explains that the administration's lack of concern might have more to do with the fact that the Fourth Circuit is one of the most liberal appellate courts. The appellate court indicated during the initial action that they would be more likely than not to side with the administration if they decided to actually hear the case.

Now that the Supreme Court has instructed the appellate court to hear Liberty's challenge, we'll find out if the administration's confidence was well-founded.

The Fourth Circuit tends to move quickly, so the court could hear arguments as early as Spring 2013. That means we could be prepping for another Supreme Court ACA showdown in the 2013 Term.

And even if the Court rejects an ACA challenge in 2013, there's the potential for reprisal once the law becomes effective in 2014.

Just like Ghostface, this case will be around for plenty of sequels.

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