Obama Admin Appeals Judge’s Ruling on Pro-Abortion Obamacare

National   |   Steven Ertelt   |   Mar 1, 2011   |   11:29AM   |   Washington, DC

The administration of President Barack Obama filed legal papers on Monday officially appealing the decision of a federal judge in Virginia who struck down the main portion of the Obamacare law that could allow taxpayer funding of abortions.

In one of many lawsuits filed against the Obamacare law, the state of Virginia 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 unconstitutional.

The Obama team’s legal papers urged the 4th U.S. Circuit Court of Appeals to reverse the judge’s ruling and argued that the individual mandate is allowed  under the Commerce Clause, which gives Congress the power to regulate interstate commerce.

“As Congress found, the means of payment for services in the interstate health care market is economic activity that substantially affects interstate commerce,” the Justice Department wrote. “The requirement that participants in the health care market have insurance to pay for the services they consume is thus a quintessential exercise of the commerce power.”

The office of Virginia Attorney General Ken Cuccinelli is expected to file a brief in response later this month, and it will likely focus on the argument that Congress can’t regulate commercial inactivity — that is, when Americans decide not to buy health care. He will argue the federal government has no right to require Americans to purchase health care.

Last month, Cuccinelli announced he had filed a petition on behalf of the state with the Supreme Court to ask it to take an expedited review of the lawsuit. Cuccinelli’s move came 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.

Normally, appeals of decisions of United States district courts are first heard in the federal courts of appeals, but Cuccinelli is using Rule 11 of the Rules of the United States Supreme Court to request an immediate review in the U.S. Supreme Court and a bypass of the federal appeals court. Since both sides agree the Supreme Court will likely be the final arbiter of the Obamacare lawsuit and because the federal government is already spending significant time and taxp[ayer expense implementing the law, that could ultimately be reversed, Cuccinelli argues the Supreme Court could take up the case immediately now that federal judges have initially ruled.

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.

In the Virginia case, the judge ruled on December 13 that  no court had expanded the Commerce Clause to allow the government to regulate a person’s decision not to buy a product.

“At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate,” Hudson wrote.

Recently, 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.