The Supreme Court Takes Up Obamacare Again

The U.S. flag flies in front of the West Front of the Supreme Court Building on August 7, 2009 in Washington, D.C. Judge Sonia Sotomayor will be sworn in as the 111th justice of the Supreme Court on Saturday.
National Journal
Sam Baker
Add to Briefcase
See more stories about...
Sam Baker
Nov. 26, 2013, 6:56 a.m.

The Su­preme Court agreed Tues­day to wade in­to an­oth­er heated Obama­care case — and opened the door to a new round of “war on wo­men” at­tacks ahead of the 2014 midterms.

The justices agreed to hear a chal­lenge to the health care law’s con­tra­cep­tion man­date, which re­quires most em­ploy­ers to in­clude con­tra­cep­tion in their em­ploy­ees’ health in­sur­ance policies without char­ging a co-pay or de­duct­ible.

A rul­ing would likely come in June — just months ahead of midterm elec­tions that could de­term­ine which party con­trols the Sen­ate and thus the con­firm­a­tion pro­cess for new Su­preme Court nom­in­ees.

The polit­ics of the con­tra­cep­tion man­date have so far be­nefited Demo­crats. Dur­ing the 2012 race, Pres­id­ent Obama made the policy the center­piece of his de­fense of the un­pop­u­lar health care law. And Demo­crats were able to wrap GOP cri­ti­cism of the policy in­to a lar­ger nar­rat­ive that Re­pub­lic­an Sen­ate can­did­ates were wa­ging a “war on wo­men.”

“We be­lieve this re­quire­ment is law­ful and es­sen­tial to wo­men’s health and are con­fid­ent the Su­preme Court will agree,” White House press sec­ret­ary Jay Car­ney said in a state­ment Tues­day.

But there are good reas­ons for the White House and Demo­crats to worry about how the Court will rule.

Three fed­er­al Ap­peals Courts have ruled at least par­tially against the con­tra­cep­tion man­date, say­ing it in­fringes on the re­li­gious liber­ties of cor­por­a­tions or their own­ers — or both.

Two fed­er­al Ap­peals Courts have dis­missed chal­lenges on pro­ced­ur­al grounds, say­ing cor­por­a­tions can­not ex­er­cise re­li­gion and that own­ers can­not per­son­ally stand in for their busi­nesses. But when cases have cleared that bar and moved ahead to the sub­stant­ive ques­tion of wheth­er the man­date is an in­fringe­ment on re­li­gious liberty, the Justice De­part­ment has fared poorly.

The Su­preme Court ac­cep­ted two suits today — one filed by Hobby Lobby, a chain of arts-and-crafts stores, and the oth­er by Con­es­toga, a cab­in­et-mak­ing firm. By com­bin­ing the two cases, the justices en­sured they will have an open­ing to rule broadly on the man­date, and on the big­ger ques­tions of wheth­er cor­por­a­tions can ex­er­cise re­li­gion.

In Se­beli­us v. Hobby Lobby Stores Inc., the 10th Cir­cuit Court of Ap­peals ruled that the com­pany could sue over the birth-con­trol re­quire­ment. Cit­ing the Su­preme Court’s Cit­izens United rul­ing on cam­paign fin­ance laws, the judges said that cor­por­a­tions (and not just the people who own them) can ex­er­cise First Amend­ment rights.

The 3rd Cir­cuit Court of Ap­peals, on the oth­er hand, dis­missed Con­es­toga Wood Spe­cial­ties Corp. v. Se­beli­us. That court ruled that a for-profit cor­por­a­tion could not ex­er­cise re­li­gious be­liefs and there­fore could not sue. And the own­ers couldn’t sue be­cause they per­son­ally wer­en’t sub­ject to the con­tra­cep­tion man­date.

The Obama ad­min­is­tra­tion wanted the Su­preme Court to hear the Hobby Lobby case, but not Con­es­toga’s ap­peal.

If the justices had taken only Hobby Lobby’s case, they might not have been able to de­cide wheth­er the own­ers of a com­pany can sue even when the cor­por­a­tion it­self can­not. Be­cause the lower court al­lowed Hobby Lobby to chal­lenge the man­date as a cor­por­a­tion, it didn’t both­er with ques­tions about the firm’s own­ers. Tak­ing both ap­peals al­lows the high court to ad­dress both ques­tions.

Or­al ar­gu­ments have not yet been sched­uled. The Court does not elab­or­ate on why it takes cer­tain cases, al­though it was all but guar­an­teed to hear the con­tra­cep­tion chal­lenge.

What We're Following See More »
JUST IN CASE…
White House Adds Five New SCOTUS Candidates
3 hours ago
THE DETAILS

President Trump added five new names to his Supreme Court short list on Friday, should a need arise to appoint a new justice. The list now numbers 25 individuals. They are: 7th Circuit Appeals Judge Amy Coney Barrett, Georgia Supreme Court Justice Britt C. Grant, District of Columbia Circuit Appeals Court Judge Brett M. Kavanaugh, 11th Circuit Appeals Judge Kevin C. Newsom, and Oklahoma Supreme Court Justice Patrick Wyrick.

SAVE THOSE PERTAINING TO EXEC BRANCH
Sessions: DOJ Will No Longer Issue Guidance Documents
4 hours ago
WHY WE CARE

"Attorney General Jeff Sessions announced Friday the Justice Department will revamp its policy for issuing guidance documents. Speaking at the Federalist Society’s annual conference in Washington Friday, Sessions said the Justice Department will no longer issue guidance that 'purports to impose new obligations on any party outside the executive branch.' He said DOJ will review and repeal any documents that could violate this policy." Sessions said: “Too often, rather than going through the long, slow, regulatory process provided in statute, agencies make new rules through guidance documents—by simply sending a letter. This cuts off the public from the regulatory process by skipping the required public hearings and comment periods—and it is simply not what these documents are for. Guidance documents should be used to explain existing law—not to change it.”

Source:
STARTS LEGAL FUND FOR WH STAFF
Trump to Begin Covering His Own Legal Bills
5 hours ago
THE DETAILS
DISCUSSED THE MATTER FOR A NEW BOOK
Steele Says Follow the Money
6 hours ago
STAFF PICKS

"Christopher Steele, the former British intelligence officer who wrote the explosive dossier alleging ties between Donald Trump and Russia," says in a new book by The Guardian's Luke Harding that "Trump's land and hotel deals with Russians needed to be examined. ... Steele did not go into further detail, Harding said, but seemed to be referring to a 2008 home sale to the Russian oligarch Dmitry Rybolovlev. Richard Dearlove, who headed the UK foreign-intelligence unit MI6 between 1999 and 2004, said in April that Trump borrowed money from Russia for his business during the 2008 financial crisis."

Source:
BRITISH PUBLICIST CONNECTED TO TRUMP TOWER MEETING
Goldstone Ready to Meet with Mueller’s Team
7 hours ago
THE LATEST

"The British publicist who helped set up the fateful meeting between Donald Trump Jr. and a group of Russians at Trump Tower in June 2016 is ready to meet with Special Prosecutor Robert Mueller's office, according to several people familiar with the matter. Rob Goldstone has been living in Bangkok, Thailand, but has been communicating with Mueller's office through his lawyer, said a source close to Goldstone."

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login