Opponents Of Secondary Provisions In Health Care Law Look To Lower Courts

A demonstrator protests outside the the Supreme Court Thursday in Washington, D.C. i i

A demonstrator protests outside the the Supreme Court Thursday in Washington, D.C. David Goldman/AP hide caption

itoggle caption David Goldman/AP
A demonstrator protests outside the the Supreme Court Thursday in Washington, D.C.

A demonstrator protests outside the the Supreme Court Thursday in Washington, D.C.

David Goldman/AP

When the Supreme Court upheld the central tenet of President Obama's health care law, it meant that several lower court fights on other aspects of the sweeping legislation can move forward.

Those cases, including high-profile lawsuits by Catholic organizations challenging the law's contraception coverage rules, would, obviously, have been affected if the court had found the individual mandate unconstitutional or struck down the law in its entirety.

But with the law intact, the lawsuits — many of them held in abeyance pending the high court's decision — will proceed.

"Most raise almost entirely independent issues, and all the decision means is that those cases will continue," says Robert Alt of the Heritage Foundation.

Let's look at two of the biggest challenges to aspects of the law:

1) Suits brought by dozens of Catholic dioceses, schools and organizations that assert the health care law's provision on contraception violates their religious freedom.

2) The legal challenge to a 15-member panel created by the health care law that would make annual Medicare spending control recommendations to Congress and the administration.

Catholic Challenges

Last month, a dozen lawsuits were filed on behalf of 43 Catholic dioceses, schools, hospitals and organizations challenging the health care law requirement that access to contraception be provided by almost all employers.

Here's how NPR health expert Julie Rovner recently explained the controversy that prompted the lawsuits, and the administration's efforts to mollify Catholic leaders:

[They] have sued over the requirements for no-cost coverage of regular birth control, sterilization and so-called morning-after emergency contraceptives. Because one of the ways those drugs may work is by preventing the implantation of a fertilized egg into a woman's uterus, Catholics believe they can cause a very early abortion, even though they are classified by the Food and Drug Administration as contraceptives.

President Obama tried to defuse the controversy over the requirement back in February, after religious groups complained that the exemption from the requirement, which applied effectively only to actual houses of worship and groups that employ only members of a specific faith, was too narrow.

The president's proposal was not to expand the exemption but to allow religious universities and charities to have their health insurers offer the coverage instead.

Some Catholic leaders, including the president of the University of Notre Dame, initially called Obama's move "welcome." But subsequent discussions over how the plan would be implemented broke down, and the lawsuits remain in the pipeline.

Modern Healthcare has compiled an online list of the pending lawsuits and the plaintiffs represented.

In a statement on its website, the United States Conference of Catholic Bishops on Thursday reiterated its long-standing support for comprehensive health care reform and its opposition to parts of the law that the bishops argue will lead to federal funds being diverted to fund abortions.

It also said the law upheld by the Supreme Court lacks "essential conscience protection" that would exempt religious and other employers from having to cover "sterilization and contraception, including abortifacient drugs."

IPAB Challenge

The abbreviation means "Independent Payment Advisory Board," which has been described by Kaiser Health News as "designed to help hold down costs in Medicare, the federal health program for seniors and the disabled."

Opponents of the panel argue that it will end up creating a system of rationed care for the nation's elderly and will reduce Medicare reimbursements to health care providers.

Rationing is prohibited under the health care law. Here's a summary by the Kaiser Family Foundation of the law's language on IPAB and rationing:

"The Board is prohibited from submitting proposals that would ration care, increase revenues or change benefits, eligibility or Medicare beneficiary cost sharing (including Parts A and B premiums), or would result in a change in the beneficiary premium percentage or low-income subsidies under Part D."

The panel, under the law, is expected to begin making recommendations in 2015 — recommendations that Obama has argued are the key to controlling the health insurance program's spiraling cost.

The Goldwater Institute, a libertarian think tank based in Arizona, has challenged the advisory board in that state's district court. The 2010 complaint, Coons v. Geithner, asserts that the advisory board is an "unconstitutional delegation of congressional powers to an unelected, unaccountable executive agency."

The Coons in the case is Nick Coons, a computer sales and repair businessman in Tempe who the Goldwater Institute argues "will face heavy fines from the IRS if he doesn't buy a government-approved health insurance plan by 2014." Plaintiffs also include a surgeon, and Arizona Republican Reps. Jeff Flake and Trent Franks.

Goldwater Institute President and CEO Darcy Olsen, writing on the organization's website after Thursday's decision, said the legal challenges are ongoing.

"As much as today's decision may feel like the end of the road," she wrote, "I assure you that the battle rages on."

In court, as well as on Capitol Hill and the home districts of many members of Congress.