The Miami Herald

It ain’t over – more legal challenges to health care law coming

Legal challenges will continue even after the Supreme Court’s landmark decision Thursday upholding the Obama administration’s signature health-care law.

Roman Catholics are challenging a birth control mandate. Mining companies already have filed multiple suits over black-lung benefits made easier under the law. Conservatives are in court fighting an advisory committee once denounced as a “death panel.”

“You’ll definitely see more litigation once these new provisions take effect,” predicted Karen Harned, the executive director of the National Federation of Independent Business’ Small Business Legal Center.

The small business federation filed one of the initial lawsuits challenging the Patient Protection and Affordable Care Act, which remains a target-rich environment for litigators. The Supreme Court’s 5-4 decision essentially dealt with the big picture, preserving the overall law but leaving unexamined for now most of its roughly 450 individual provisions. Many of these provisions haven’t yet taken effect, making them more difficult, though not impossible, to challenge. Generally, courts are more willing to entertain a lawsuit against a legal provision that’s already been applied.

One active provision, for instance, prohibits physician-owned hospitals from billing Medicare for self-referrals if the hospital expands. This cramps the intentions of the 20-bed Texas Spine and Joint Hospital in the town of Tyler, one of roughly 300 physician-owned hospitals in the country. The Texas hospital administrators hope to expand, but the health care law holds them back.

“Its sole rationale is to prohibit a class of U.S. citizens, physicians, from owning a legal business for the improper purpose of protecting non-physicians-owned hospitals from competition,” Houston-based attorney Lindsey Birdsong argued, in a lawsuit filed on behalf of the hospital in Tyler and the Physician Hospitals of America.

U.S. District Judge Michael Schneider upheld the provision, while acknowledging serious questions about “the wisdom and fairness of the legislation” as well as the “hardship” the law has caused physician-owned hospitals. The case is now before the 5th U.S. Circuit Court of Appeals.

More recently, the University of Notre Dame joined other Catholic organizations in a barrage of lawsuits challenging the law’s requirement that most employers cover preventive health services – including contraception – as part of their insurance policies. Though the Obama administration modified this policy somewhat under pressure, the Catholic schools and dioceses argue that their religious liberties are still infringed.

“The right to such (contraceptive) services does not force the University of Notre Dame to violate its own conscience by making it provide, pay for and/or facilitate those services to others, contrary to its sincerely held religious beliefs,” the university’s attorneys declare in their opening brief.

Emily Hardman, an attorney and spokeswoman for the Becket Fund for Religious Liberty, noted Friday that 23 lawsuits have been filed against the so-called contraception mandate. She predicted “it’s likely” that other suits will be filed citing religious-liberty grounds.

Another section of the law eases eligibility under the existing Black Lung Benefits Act, enabling more miners and their widows to secure aid. Because of the changes, sick miners who’ve worked at least 15 years underground are presumed to be eligible for benefits. Mining companies have the burden of proving otherwise. The law also revises spousal eligibility.

Mining companies have filed multiple lawsuits against the revisions, with one arising out of West Virginia now before the Supreme Court.

“You’d be surprised at the challenges that have come up to almost every aspect of these amendments,” Timothy MacDonnell, the director of the Black Lung Clinic at the Washington and Lee University School of Law, said in an interview Friday.

Beyond its individual provisions, the health care law will inspire lawsuits indirectly as a result of the Supreme Court’s reasoning in the health care ruling. For instance, in upholding the expansion of Medicaid the court’s majority suggested tighter rules for when Congress can use funding as a way to persuade the states to take certain actions. Chief Justice John Roberts Jr. said such monetary persuasion could become, at a certain point, “economic dragooning,” and it’s something future courts will look closely at.

“I can see a day where there may be a challenge over that,” said Harned, of the National Federation of Independent Business, “but that’s a long ways in the future.”




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