Supreme Court Battle Over Pro-Abortion Obamacare Set for 2012

Politics   |   Steven Ertelt   |   Sep 27, 2011   |   10:47AM   |   Washington, DC

The U.S. Supreme Court appears to be the location for the final battle next summer over the legality of Obamacare, the government-run health care scheme that pro-life groups opposed because it allows abortion funding and prompts rationing concerns.

Late Monday, the Obama administration said it would not ask the full U.S. Court of Appeals for the 11th Circuit to take up the case on appeal from a judge in Florida, who ruled Obamacare unconstitutional in the case involving Florida and dozens of other states that have signed on to the lawsuit. Last month, a three-judge panel issued a 2-1 ruling agreeing with the federal judge and saying Congress went too far constitutionally in passing Obamacare.

The Supreme Court, according to a Washington Post report, would likely receive the case sometime next summer — during the intensity of the presidential election, which will likely focus in part on the much-maligned Obamacare law that a majority of Americans continue to oppose. The high court will have to wade through competing appeals court decisions — with the 11th Circuit overturning the law, the 6th Circuit upholding it, and the 4th Circuit turning down a case challenging it.

Had the Obama administration asked for the full appeals court to consider the case, that would have pushed back any decision on it until 2013, likely. The decision indicates the Obama administration believes it will win at the Supreme Court and that Obamacare is a winning issue for Obama’s re-election campaign. The decision also likely prevented more attention on another legal loss, as just five of the judges on the 11th Circuit were appointed by Democrats and one has already ruled in favor of overturning Obamacare.

As is often the case, the current 4-4 conservative-liberal split on the Supreme Court means Justice Anthony Kennedy will likely be the deciding vote on whether Obamacare is overturned or not and, if so, how much of the law is reversed and how much will be allowed to be put into play.

The 11th Circuit ruled that the key feature of the Patient Protection and Affordable Care Act, better known by many as “Obamacare,” is unconstitutional. The “individual mandate” portion of the legislation—a provision which requires all Americans to purchase health insurance or suffer a monetary penalty—was found by the panel in a 2-1 decision to be constitutionally infirm.

The two judges who wrote the opinion, one a George H. W. Bush appointee and the other a Clinton appointee, used 207 pages to analyze the legislative intent of the enactment, to explore the existing pertinent case law, and to carefully consider all the possible arguments for the individual mandate offered by both sides. In the end, their conclusion was that the question before them was “whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives.” The answer they gave was a resounding “no.”

Earlier this month, another federal judge hearing one of the many lawsuits filed against the abortion-funding Obamacare law ruled the individual mandate requiring people to purchase health insurance is unconstitutional.

Judge Christopher Conner in Harrisburg issued the ruling and he said the individual mandate is an unconstitutional extension of the authority the Commerce Clause grants the federal government. This suit was filed by a Pennsylvania couple who does not want to be forced to purchase health care insurance and pay the penalties for not doing so under the Obamacare provisions.

“The nation undoubtably faces a health care crisis,” Conner, an appointee of President George W. Bush in 2002, said in his ruling.”Scores of individuals are uninsured and the costs to all citizens are measurable and significant. The federal government, however, is one of limited enumerated powers, and Congress’s efforts to remedy the ailing health care and health insurance markets must fit squarely within the boundaries of those powers.”

The ruling would leave most of the Obamacare law intact except for provisions related to the requirement to purchase health care. It comes after a three-judge panel of the Fourth Circuit Appeals Court dismissed the lawsuit the state of Virginia filed against the Obamacare law, which is one of several lawsuits that are working their way to the Supreme Court.

The decision is no surprise given the stacked nature of the panel, as computers at the U.S. Court of Appeals for the Fourth Circuit that randomly selected the panel of three judges from the appeals court to conduct oral hearings on the legal debate surrounding the law picked three judges from a evenly-divided court who are all Democrats. All three judges listening to two legal challenges were appointed by Democrats — Judge Diana Motz, the senior member of the panel, is a Clinton appointee while Judges Andre Davis and James Wynn were appointed by Obama.

The three judges dismissed the lawsuit challenging the constitutionality of the national health care law’s individual mandate by saying the state lacked the standing to sue. As a result of the decision, the panel did not delve into the merits of the case itself and whether the Obama administration has the Constitutional ability to compel citizens to purchase health care, which could pay for abortions with taxpayer funds and include rationing. The judges disagreed with Virginia’s contention that it was an injured party because it passed a law before Obamacare making it so Virginia residents are not required to purchase health care insurance.

Earlier this year, 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.