See You In Court

Kathy Swendiman is a legislative attorney at the Congressional Research Service of the Library of Congress. The views expressed herein are those of the author and are not presented as those of the Congressional Research Service or the Library of Congress. Kathy is also my Mom, and has edited this blog for the past five years. She is wonderful :).

The Affordable Care Act, also known as "ACA" or "Obamacare," is so divisive it recently provoked a federal government shutdown. It is also the subject of over 100 lawsuits. I will leave the policy debates to my son and his wonky friends, but it might be useful to look at why this statute, in particular, is the subject of so much litigation.

While the Supreme Court’s 2012 decision in NFIB v. Sebelius upheld most of ACA, closing the 30 or so cases that had been filed up to that point, there are now more than 70 ongoing legal challenges involving that statute.

Why so much litigation? To quote a famous poet, let me count the ways...

First of all, health care represents one-sixth of the domestic economy. Reform efforts in this sector are going to create winners and losers. Affected groups will naturally seek to protect their gains and reduce losses, often through litigation.

Health care reform necessarily implicates issues of ethical, moral or religious concern for many persons. Should there be a right to health care? If so, how much? And who will pay for it? Is it ethical for the government to pay for medical care for some, but not all? Who decides? Indeed, forty years after Roe v. Wade, our country still remains deeply divided on the issue of abortion; many have moral concerns about the appropriateness of modern reproductive health technologies.

To the extent the provisions of ACA allow federal agencies to decide what medical care can or must be covered by insurance plans, significant conflict will ensue. How much money is involved may be less important than the government's role in making controversial health care decisions. Such has certainly been the case for the Administration’s decision to require contraception coverage in most health insurance plans.

The law continues to be unpopular with a significant portion of the public, and ideological objections and congressional repeal efforts continue unabated.

The Affordable Care Act is also vulnerable to legal challenges due to the complex, unusual circumstances surrounding its passage, which precluded last-minute efforts to amend the unwieldy bill. Every major statute, including Social Security and Medicare, was amended after initial passage, often including both significant structural changes and routine "technical amendments." However, opposing political party majorities in the House and Senate, and the lack of bipartisan support for the original bill have contributed to a conspicuous absence of post-enactment legislative fixes.

It has fallen to the Obama administration to make numerous tweaks and adjustments as it has implemented ACA. Many agency regulations, and some unusually broad exercises of executive discretion -- such as the President’s most recent declaration that insurance companies can allow customers to keep their insurance plans even if they do not meet the law’s requirements -- have ended up in court.

Do I think there will be another High Court showdown for this statute? Possibly. The Affordable Care Act may have survived a first strike, but NFIB v. Sebelius hardly ended the contentious debate over the statute. Some argue that the Supreme Court’s ruling was only the end of the beginning.

So far, this seems to be the case.