Attorney General Seeks Quick Supreme Court Review of Obamacare Lawsuit

National   |   Steven Ertelt   |   Feb 3, 2011   |   12:24PM   |   Richmond,VA

Virginia Attorney General Ken Cuccinelli announced today that he will file a petition on behalf of the state with the Supreme Court to ask it to take an expedited review of the lawsuit he filed to declare Obamacare unconstitutional.

Leading pro-life groups are united in their opposition to Obamacare because of abortion-funding and rationing concerns within the legislation.

Cuccinelli’s move comes just days after a Florida federal judge ruled the entire Obamacare law unconstitutional in a separate lawsuit Florida and more than two dozen other states filed. They challenged the individual mandate — which compels Americans to purchase health insurance that could fund abortions with taxpayer funds or premiums — and the federal judge in the case ruled the mandate, and therefore the entire law, unconstitutional.

A Virginia federal judge ruled the individual mandate invalid but not the entire Obamacare law in his decision in the lawsuit Cuccinelli filed. Two other federal judges have issued rulings saying the individual mandate is constitutionally valid. It is because of these varied decisions that the Virginia attorney general is moving ahead.

“Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible,” said Cuccinelli in a statement to “Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional.  Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone’s best interest.”

The Petition for Certiorari Before Judgment in the United States Supreme Court in the case of Commonwealth v. Sebelius will be filed pursuant to Rule 11 of the Rules of the United States Supreme Court.

Normally, appeals of decisions of United States district courts are first heard in the federal courts of appeals.  But Rule 11 provides that an immediate review in the U.S. Supreme Court is permissible “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in” the Supreme Court.

“Rule 11 is the exception to the general rule, but this case and the other cases challenging the constitutionality of PPACA are truly exceptional in their own right,” Cuccinelli, who is pro-life, said. “There are a number of suits pending throughout the country challenging the constitutionality of PPACA.  Presently, 28 states have filed suits challenging the authority of Congress to enact this law.  That, in and of itself, is exceptional and makes the cases excellent candidates for immediate review in the Supreme Court.”

The attorney general said he did not make the decision lightly and added that Governor Bob McDonnell “is particularly concerned about the possibility of wasting precious and strained taxpayer dollars preparing for a law that may well be struck down.”

“Recognizing the tremendous amount of time and resources that are and will be expended to implement a law that two federal judges have ruled contains unconstitutional provisions, Lieutenant Governor Bolling and Speaker Howell have joined the governor in requesting that my office seek expedited review,” he said.

The Obama administration has not agreed to expedite the Virginia case, which it has appealed to the U.S. Court of Appeals for the Fourth Circuit. But Cuccinelli said documents Obama attorneys filed make it clear it believes the case is important enough to meet the Supreme Court’s expedited review criteria.

“Despite the fact that the Department of Justice has not agreed to join in a Rule 11 motion, in a filing with the U.S. Court of Appeals for the Fourth Circuit to set an expedited schedule for its appeal of Virginia’s district court victory, the Justice Department stated, ‘The constitutionality of [PPACA] has public policy implications of the highest magnitude,'” he noted. “In other words, according to the Justice Department itself, a case cannot have public policy implications that are more important than this case.  We agree and feel that reinforces the fitting nature of our request for immediate review in the Supreme Court.”

Yesterday, the U.S. Senate rejected a move by Senate Republican Leader Mitch McConnell to have the Senate approve a bill the House approved to repeal Obamacare. Senators voted along party lines with all Democrats — including three who say they are pro-life — voting against repealing the abortion-funding bill while all Republicans supported repeal.

When Congress passed the government-run health care bill, it did so without any limits on abortion funding and language mandating taxpayer financing of abortion in certain circumstances.

Obama eventually issued a controversial executive order supposedly taking the abortion funding issue off the table.

However, virtually every pro-life group said it would not mitigate the abortion funding because it doesn’t have the effect of law, could be reversed in the future, and because it didn’t tackle much of the abortion funding in the bill. The Obama administration could also ignore the order and not put it in place when the health care law goes into effect.

Arizona, Tennessee, Mississippi, Missouri, and Louisiana have passed similar bills that have already been signed into law by governors in those states and several other states are expected to consider legislation in their upcoming legislative sessions. Governors in Oklahoma and Florida vetoed similar legislation.