Issue 29: Supreme Court to Decide Constitutionality of Health Care Reform

This is the twenty-ninth issue in our health care reform series of alerts for employers on selected topics in health care reform. (Our general summary of health care reform and other issues in this series can be accessed by clicking here.) This series of Health Care Reform Management Alerts is designed to provide a more in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.

As anticipated, the US Supreme Court has agreed to hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA). After passage of PPACA, opponents immediately assailed its constitutionality, stating that the requirement for individuals to purchase insurance coverage exceeds Congress' power under the Commerce Clause of the United States Constitution. Several cases were filed across the country, and as we have previously reported, conflicting decisions have come out of the District Courts and the Circuit Courts of Appeals. Some courts have ruled PPACA constitutional, others ruled it unconstitutional, and yet others have ruled that while the individual mandate is unconstitutional, the statute itself is constitutional.

The only Circuit Court of Appeals which, thus far, has found the individual mandate of statute unconstitutional is the 11th Circuit. On November 14th, the Supreme Court announced it will hear an appeal of the 11th Circuit decision in State of Florida v. US Department of Health and Human Services. Oral arguments are scheduled for March of 2012, and the court has set aside 5 1/2 hours of time for the parties. A decision is expected by July, prior to the November elections.

Set forth below is a scorecard of the cases challenging health care reform that have made their way up to the Circuit Courts of Appeals and their respective holdings or status:

Court of Appeals	Case	Holding/ Status	Date
3rd Circuit	New Jersey Physicians v. Obama	Dismissed for lack of standing	August 2011
4th Circuit	Virginia v. Sebelius; Liberty University, Inc. v. Timothy Geithner	Constitutional; also ruled that penalty for not complying with individual mandate is a tax that cannot be ruled upon until 2014.	September 2011
6th Circuit	Thomas More Law Center v. Obama	Constitutional	July 2011
8th Circuit	Kinder v. Geithner	Pending	Arguments in October 2011
9th Circuit	Baldwin and Pacific Justice Institute v. Sebelius	Pending	Arguments in July 2011
11th Circuit	State of Florida v. US Department of Health and Human Services	Unconstitutional; however, individual mandate may be severed from statute leaving statute constitutional.	August 2011
DC Circuit	Susan Seven-Sky v. Holder	Constitutional	November 2011