ObamaCare could be back before the Supreme Court by next year

Nov. 2, 2012
Fox News

The ObamaCare regulation that will require employers to provide insurance coverage with access to a wide variety of contraception has prompted numerous lawsuits across the country challenging that mandate, and opponents are scoring key victories.

The latest legal showdown came Thursday in a federal courtroom in Oklahoma, where the owners of the Hobby Lobby arts and crafts store tried to convince a federal judge to issue an injunction against the mandate, arguing that it would violate the owners' religious beliefs by requiring them to provide access to "abortion-causing drugs and devices."

Though it could take days, even weeks, for Judge Joe Heaton to rule on the injunction, attorneys for Hobby Lobby say they're feeling optimistic.

While Hobby Lobby would be the largest employer to win a reprieve, the company wouldn't be the first. Companies in Colorado and Michigan have won temporary injunctions in recent weeks, but there is a much bigger development that takes the fight several steps closer to the Supreme Court.

Liberty University was among the first to file suit against the president's health care law when it initially was passed. The school got as far as the Fourth Circuit, which determined that it could not get to the merits of Liberty's case because of the Anti-Injunction Act.

That 1867 law essentially blocks plaintiffs from challenging a tax before they've actually had to pay it. Some argued that the penalty associated with the individual mandate at the heart of the health care law amounted to a tax, so under the Anti-Injunction Act legal challenges couldn't proceed until someone actually had to pay it.

When the Supreme Court issued its landmark decision upholding the health care law in June, it swept aside the 1867 law as a barrier to getting to the merits of the case. When that happened, Liberty University renewed its attempt to have its case heard.

Upon the school's second request, the Supreme Court directed the federal government to respond. In a move many found surprising, the Department of Justice filed a response late Wednesday - agreeing with the university.

The agreement comes solely on procedure, not on the merits of the case. In addition to challenging the individual mandate on grounds not considered by the Supreme Court, Liberty is also challenging the employer mandate. With both parties now united in the belief that the case should go back to the Fourth Circuit, it is likely the Supreme Court will grant that request.

That would put the case well ahead of the dozens of others now challenging the ObamaCare mandate at the lower court level, meaning it could be back at the Supreme Court as early as next year.