Lawsuits creating challenges to historic health reform law: Multiple cases pending across nation
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* Charlotte Tucker

When state attorneys general began filing lawsuits against the Obama administration hours after the president signed the Affordable Care Act in March, some legal commentators called the suits frivolous.

Nearly a year later, several of the lawsuits have been dismissed, but a few others have been allowed to continue, and legally it is not clear who will eventually emerge victorious.

The day the bill was signed into law, 13 states, with Florida at the helm, filed a lawsuit in federal court challenging its requirements. Those states were Alabama, Colorado, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. In the ensuing months, Alaska, Arizona, Georgia, Indiana, Mississippi, Nevada and North Dakota joined the lawsuit.

![Figure1](http://www.thenationshealth.org/http://www.thenationshealth.org/content/nathealth/41/1/1.1/F1.medium.gif)

[Figure1](http://www.thenationshealth.org/content/41/1/1.1/F1)

Doctors for America advocates speak to the media before presenting a petition to House Speaker John Boehner, R-Ohio, in Troy, Ohio, in January. The petition supports the health reform law, which has come under attack from legislators and lawsuits.

Photo by Anthony Weber, courtesy Troy Daily News/AP

In Virginia, Attorney General Ken Cuccinelli also filed a lawsuit against the Obama administration, arguing both that the mandate for all people to have insurance is unconstitutional and that it violates a law passed by the Virginia Legislature in 2009 in anticipation of the federal health reform law. The Virginia law says that no resident of the state can be compelled to purchase health insurance.

A number of other states and organizations, including the Thomas More Law Center, Liberty University and the Independent American Party of Nevada, have filed lawsuits as well, some of which have been dismissed and others of which are still moving through the courts.

The main objection to the health reform law arises out of Section 1501, which establishes a mandate for every U.S. citizen — except those who fall into exempted categories — to maintain a minimum level of health care coverage each month beginning in 2014. Failure to do so will result in a penalty payment that will be paid with a person’s federal income tax return.

According to proponents of the law, the mandate is crucial because otherwise people might go without health insurance until they become sick, at which point they would purchase insurance. If they do that, then the pool of payers might consist only of sick people, which would bankrupt the system.

“That rationale hasn’t been disputed much by the people who oppose the law,” said Andrew Koppelman, a constitutional law expert at Northwestern University’s law school, during a conference call debating the constitutionality of the law arranged by the American Health Lawyers Association in January. “But they’ve argued that you just can’t do that.”

In December, judge Henry Hudson struck down the mandate in *Commonwealth of Virginia v. Sebelius,* saying the requirement to buy insurance is an unjustified expansion of federal power. His ruling did not invalidate the law, and the Department of Justice has said it will appeal.

APHA called the decision in the Virginia case a “grave disappointment.”

In a statement, APHA Executive Director Georges Benjamin, MD, FACP, FACEP (E), said that efforts to threaten or weaken the protections provided by the Affordable Care Act are “misguided and would unduly put the future health of millions of Americans at perilous risk.”

“Having access to quality, affordable health insurance is a fundamental human right and not a privilege,” Benjamin said. “Unfortunately, the ruling by U.S. District Judge Henry Hudson…stands to unravel all of the enormous progress already made at dramatically improving the health care quality and delivery in this country.”

In *Florida v. Sebelius,* the lawsuit objects to both the mandate and the law’s expansion of Medicaid to cover people with incomes up to 133 percent of the poverty level starting in 2014. Some states argue that, despite the fact that the federal government will cover at least 90 percent of the cost of the new enrollees, they cannot afford their share. A decision was expected in the Florida case sometime in January.

![Figure2](http://www.thenationshealth.org/http://www.thenationshealth.org/content/nathealth/41/1/1.1/F2.medium.gif)

[Figure2](http://www.thenationshealth.org/content/41/1/1.1/F2)

Advocates show their support for the new health reform law in Olympia, Wash., in March by delivering petitions to the state attorney general urging him to drop his challenge to the law.

Photo by Tony Overman, courtesy The Olympian/AP

Most legal experts expect the cases to eventually wind up in the U.S. Supreme Court, though it is unlikely the court would take up the case before October 2012.

APHA has joined in a friend-of-the-court brief supporting the health reform law in the Florida case. The brief focuses on the Medicaid expansion, arguing that the Affordable Care Act does not radically change Medicaid’s structure or purpose, said Sarah Somers, an attorney with the National Health Law Program, which wrote the brief and is representing the organizations that signed it.

Somers said the judge in the case has indicated that he does not believe there is a very strong legal argument against the Medicaid expansion but that he might find legal problems with the individual mandate.

Many of the most visible decisions in the health reform lawsuits so far have not been unexpected, said attorneys and others who have followed the lawsuits as they make their way through the courts. The judges in Virginia and Florida were appointed by presidents George W. Bush and Ronald Reagan, respectively. And in the Thomas More and Liberty University cases, which were dismissed, the judges were appointed by President Bill Clinton.

But Somers noted that in two other cases in California and New Jersey, Bush appointees dismissed the cases for lack of standing.

“It’s legitimate to make that distinction,” Somers said. “It’s much more of a mixed bag in reality.”

As cases are decided in lower courts and make their way to circuit courts of appeal, legal experts will examine which judges are chosen to appear on panels and may begin to try to “read the tea leaves,” Somers said.

For more information on the health reform law, visit [www.healthcare.gov](http://www.healthcare.gov). For more information on the Florida lawsuit, visit [www.healthcarelawsuit.us](http://www.healthcarelawsuit.us).

*   Copyright The Nation’s Health, American Public Health Association