Don't Worry About Supremes' Refusal to Hear Liberty U's Challenge to Obamacare

In connection with Obamacare’s so-called “women’s preventive services” mandate – i.e., the diktat that employers provide health insurance coverage that includes abortifacients and contraception – the Supreme Court has agreed to review two cases, Sebelius v. Hobby Lobby Stores and Conestoga Woods Specialties Corp v. Sebelius, that raise religious liberty claims. Monday, the justices declined to review another Obamacare case, Liberty University v. Lew, that sought to press the same issue. The jutices’ denial of review in Liberty has caused some consternation among those of us hopeful that the Court will ultimately strike down the mandate. Don’t be alarmed.

Liberty is a case from the Fourth Circuit. (That court’s opinion is here.) In sum, the case was not argued as a challenge to the abortifacients/contraceptives mandate. Instead, the claimants focused on two other Obamacare mandates: the individual mandate, which requires Americans to purchase health insurance whether they want it or not; and the employer mandate, which requires employers to provide “minimum essential coverage” that includes numerous conditions and services regardless of whether employers wish to provide coverage for all of them (or employers wish to be covered for all of them).

It is true that the Liberty plaintiffs asserted that their religious beliefs barred them from “play[ing] [any] part in abortions, including [any] part in facilitating, subsidizing, easing, funding, or supporting abortions since to do so is evil and morally repugnant complicity.” But this argument was made in the context of the individual and employer mandates, not the abortifacient/contraceptive mandate, which, Jonathan Adler observes, “is a distinct legal obligation.”

Meanwhile, on June 27, 2013, the Tenth Circuit decided Hobby Lobby, one of the aforementioned cases the Supreme Court agreed to review. After hearing the case en banc, a divided court held that the claimants were likely to succeed on their motion for an injunction against enforcement of the abortifacient/contraceptive mandate. The claimants sought the injunction based on the 1993 Religious Freedom Restoration Act (RFRA).

Subsequently, in their petition to the Supreme Court, the Liberty claimants argued that the Fourth Circuit’s ruling against them conflicted with the Tenth Circuit’s ruling in Hobby Lobby. But, in truth, it did not: the Fourth Circuit in Liberty did not address the abortifacient/contraceptive mandate that is central to Hobby Lobby. In light of that, it is unsurprising that the Supreme Court did not regard Liberty as an appropriate vehicle for considering religious freedom claims against Obamacare.

Those claims will undoubtedly get a full airing. SCOTUSblog’s Lyle Denniston notes that, while Hobby Lobby focuses on the statutory RFRA claim against Obamacare, Conestoga Woods, the other case the Supreme Court has agreed to review (from the Third Circuit), raises constitutional issues under the First Amendment right to free exercise of religion, in addition to RFRA claims.

It is worth noting that the media reporting about the Liberty case has been misleading. It was covered as if it were a major Obamacare victory for the administration, an impression reinforced by the Supreme Court’s refusal to review the case (at a time when the president is groping for any semblance of good news about his “legacy” reform). In fact, as Jon Adler and Cato’s Michael Cannon explain, Liberty did significant damage to the administration’s legal position.

The Obama Justice Department essentially argued that the claimants should not be heard in court. Eric Holder’s minions posited that Liberty University lacked standing to challenge the employer mandate, and that challenges to the employer mandate were premature – both because President Obama has presumed to delay its enforcement for a year, and because the Anti-Injunction Act does not permit pre-enforcement challenges to taxes. (Hmmm, remember when the president used to insist Obamacare did not raise taxes?) The Fourth Circuit rejected all of those claims, and the Supreme Court’s refusal to review the case leaves that rejection in place.

It is true, of course, that the Fourth Circuit ruled against Liberty University on the merits. But that was virtually certain to happen on the individual mandate claim, which was not much different from the one the Supreme Court denied last year. It was, moreover, not at all surprising given the nature of the arguments on the employer mandate.

There is a much more serious challenge to Obamacare’s individual and employer mandate regime in the pipeline. As Oklahoma attorney general Scott Pruitt argued in a Wall Street Journal op-ed a few days ago, the IRS’s enforcement of the mandates in states that did not opt to create insurance “exchanges” blatantly violates the express terms of the Obamacare statute (the “Affordable” Care Act).

Consequently, those of us who oppose Obamacare should not be alarmed by the Supreme Court’s denial of review in Liberty. That case has already served its purpose by wounding the administration’s effort to bar challenges from being heard. Religious liberty concerns will be fully covered by the two abortifacient/contraceptive mandate cases the Court agreed to hear. And other weighty challenges to the individual/employer mandate regime are on the way.