29 November 2013

Obamacare is headed back to the Supreme Court--and here's why it's a big deal

UPDATE: My case page is here.

As I noted the other day, the the Supreme Court granted cert in two cases (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius) challenging the Obamacare contraceptive mandate.

The Affordable Care Act contains a regulation that requires employers to provide certain contraceptive services as a part of their employer-sponsored health care plan. To be clear, these employers are not challenging the provision of all contraceptives--just some of them. Among these contraceptive services in question are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith.

It is true that, as a practical matter, these cases will not likely have a huge impact on Obamacare itself--at stake is one small provision of the law, not the individual mandate at the center of NFIB v. Sebelius. Rather, what makes these cases a big deal is nexus of Obamacare and Citizens United, the case in which the Supreme Court held that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions. While corporations have had some personhood rights at early as the 19th century, the public perception of corporate personhood rights is strongly tied to the unpopular Citizens United decision. Furthermore, the Supreme Court is poised to expand Citizens United when it rules in McCutcheon v. FEC.

As a result, the combination of an unpopular Citizens United decision (potentially expanded by McCutcheon) with the controversial Obamacare contraceptive mandate is a high profile mix of politics and religion--sure to be a big deal when the decision comes down (quite possible a 5-4 decision the last week of June).
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