Supreme Court Rejects Call to Fast-Track Obamacare Lawsuit

National   Steven Ertelt   Apr 25, 2011   |   11:04AM    Washington, DC

The Supreme Court has rejected a request from the state of Virginia, which has filed one of the successful lawsuits that lower courts have agreed should overturn at least part of the abortion-funding health care law.

A Virginia federal judge ruled the individual mandate portion of the Obamacare law invalid in a lawsuit the state filed against the measure and Virginia Attorney General Ken Cuccinelli, in February, asked the Supreme Court to take an expedited review of the case. The Obama administration responded and asked the high court to stay away from the case until after a federal appeals court has a chance to review the federal judge’s decision and issue its own opinion on whether the law, which presents abortion funding and rationing concerns for pro-life groups, is unconstitutional.

Today, the Supreme Court justices turned down Virginia’s request in a decision that doesn’t surprise most legal observers. The nation’s leading court only rarely expedites cases, and that usually happens with wartime decisions or a major constitutional or election crisis that must be decided quickly.

With hearings already scheduled for May and June in federal appeals courts for the various cases challenging Obamacare, the Supreme Court is expected to receive the case in time for a decision by early summer of next year — in what could be a preview of one of the most contentious issues of the 2012 presidential election.

Although conservatives want her to sit out of the decision on the law because of her involvement in the Obama administration as Obama’s solicitor general, pro-abortion Justice Elena Kagan reportedly participated in the Supreme Court’s decision against fast-tracking the case. She told members of the Senate during confirmation hearings that she played no role in crafting the legislation or assisting in its passage in Congress, but conservatives have called her to sit out the case anyway.

Conservative writer Ed Morrissey of Hot Air responded to the decision, saying it “may mean that they are interested in hearing from the appeals courts on the wider variety of arguments already in play, rather than focus mainly on the Virginia case.”

“It also may indicate that the justices aren’t concerned about the appeals taking a very long time to get to them anyway,” he added, saying the current timetable gives “plenty of time to rule on the law before much of it takes effect.”

On Kagan’s apparent involvement in the decision, Morrisey said: ” If Kagan didn’t recuse herself from this decision, it would hint that she won’t recuse herself from any ObamaCare deliberations despite her role as Solicitor General for Obama and the possibility that she gave the administration legal advice on crafting and defending the law.  That’s not exactly a surprise either; only Kagan can force herself into a recusal, and the chance to weigh in on one of the most critical Supreme Court decisions in decades is going to outweigh any qualms over conflicts of interest.”

In legal papers filed with the Supreme Court, the Obama administration said other lawsuits filed against Obamacare in other states, including the main case in Florida that has been joined by dozens of other states and where a federal judge ruled the entire Obamacare law unconstitutional, are still pending and still should get hearings and decisions from appeals courts.

The Supreme Court denied, without a written decision, a previous request in a lower profile case from California to expedite the case all the way to the Supreme Court. With today’s decision, the Virginia lawsuit now heads to the Fourth Circuit Court of Appeals, which had a conservative reputation and would likely uphold the lower court’s decision if not for the four new appointments Obama has made to the 15-member court during his time in office.

In issuing his call for the expedited case, Cuccinelli said, “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. 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 was filed pursuant to Rule 11 of the Rules of the United States Supreme Court. 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.

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.