May 17, 2013 — A federal appeals court panel on Thursday seemed "skeptical" that Liberty University could challenge the federal contraceptive coverage rules, but one judge appeared receptive to the school's arguments against the Affordable Care Act's (PL 111-148) requirement that most employers offer health insurance coverage to their workers, Politico reports.
When the suit was first filed in 2010, it challenged both the employer mandate and the requirement that individuals obtain health insurance or pay a penalty. The university also later claimed that the individual and employer mandates require it to comply with rules mandating it offer contraceptive coverage for its workers, which it argues goes against its religious beliefs (Haberkorn, Politico, 5/17).
The 4th U.S. Circuit Court of Appeals dismissed the original case when Liberty first presented it in 2011, saying that it could not rule on the matter because the Anti-Injunction Act prevents suits over a tax that has yet to be levied.
However, the Supreme Court last year ordered the appeals court to reconsider the case in light of the high court's ruling in a separate challenge to the ACA, which found that the Anti-Injunction Act did not apply to the individual mandate (Women's Health Policy Report, 11/26/12).
The appeals panel likely will rule in the summer, according to Politico (Politico, 5/17).
Judges Consider Challenge to Contraceptive Coverage Rules
During Thursday's hearing, Liberty School of Law Dean Mathew Staver said the conservative Christian university faces millions of dollars in penalties if it refuses to offer health insurance coverage that violates its religious beliefs. The school contends that some contraceptives have abortion-inducing properties (AP/Washington Post, 5/16).
Alisa Klein -- an attorney with the Department of Justice -- called Liberty's claims about the contraceptive coverage requirements speculative and hypothetical, given that the rules have not been finalized (Thompson, Lynchburg News & Advance, 5/16).
She also said the school's health plans already meet the law's minimum requirements without having to add coverage it finds objectionable.
The judges seemed inclined to rule that the case is still not ripe for consideration, according to the AP/Washington Post. Judge Diana Gribbon Motz noted that the "regulations are tentative," while Judge Andre Davis asked Staver why the school can't wait to seek "a preliminary injunction when the regulations come down?" (AP/Washington Post, 5/16).
The judges also seemed receptive to Klein's argument that Liberty cannot challenge the contraceptive coverage rules because it did not include that complaint in its original filing. Davis noted that the current "case is very different from the case [Liberty] filed a couple years ago."
Arguments Over Employer, Individual Mandates
Although the judges seemed to suggest they might not decide the contraceptive coverage issue directly, they are likely to rule on the employer mandate claim, according to Politico. Liberty's suit is the sole case to challenge that requirement.
Klein argued that Congress has a long history of regulating employer health plans under the Commerce Clause and that the employer mandate is no different.
However, Motz said that the Supreme Court's June 2012 decision -- in which it upheld the individual mandate under the government's taxing power, not under the Commerce Clause -- "puts a new light ... on the Commerce Clause" (Politico, 5/17).
In court papers, the university has argued that the Supreme Court's finding that the ACA's penalties on individuals are a tax should invalidate the law because tax legislation is required to originate in the House, and the ACA originated in the Senate. However, that argument was not mentioned at Thursday's hearing, which focused on the employer requirements (AP/Washington Post, 5/16).