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U.S. President Barack Obama speaks during a Democratic National Committee fundraiser at the Hammerstein Ballroom in New York City

Health Care Legislation & Litigation

The ACLJ stands firmly in the belief that any health care reform must be constitutional. Special attention must also be given to how those federal health care funds are spent. For instance, federal funds should never be used for elective abortions. The ACLJ opposes government-run health care that results in a burgeoning bureaucracy that ultimately provides ineffective and costly care.
Short Legal Brief
Legal Documents

These issue summaries provide an overview of the law as of the date they were written and are for educational purposes only. These summaries may become outdated and may not represent the current state of the law. Reading this material DOES NOT create an attorney-client relationship between you and the American Center for Law and Justice, and this material should NOT be taken as legal advice. You should not take any action based on the educational materials provided on this website, but should consult with an attorney if you have a legal question.


The Patient Protection and Affordable Care Act (PPACA), referred to by many as “Obamacare,”  is an unprecedented power grab by the federal government. The law grants the federal government control over 1/6th of the U.S. economy, and has wreaked havoc in many areas of the nation’s healthcare market.  Several million Americans in the individual healthcare policy market have lost health insurance policies, despite the President’s promise that they could keep those policies if they liked them. In a brief submitted in a case pending in a federal court in Washington D.C., the Obama Administration has conceded that this year millions more Americans who have employer-provided health insurance will see changes and price increases in their policies.[1]  Already, insurance premiums in many states are scheduled to skyrocket.[2]

The individual mandate imposed under the PPACA took effect in January 2014, and requires Americans to purchase acceptable insurance or face an annual penalty from the IRS.[3] This penalty increases every year the individual does not purchase health insurance.[4] At least for now, however, the PPACA provides a weak enforcement mechanism for the individual mandate because it limits the means the IRS may employ to collect the penalty. First, the taxpayer is protected from either criminal prosecution or penalty for failure to pay the penalty. Second, the IRS is prohibited from either filing a notice of federal tax lien or levying any property in an effort to collect the penalty.”[5] This means that the penalty will only be enforced against those entitled to a tax refund. The penalty would be deducted from any refund. There is no mechanism for enforcing the penalty against taxpayers not entitled to a refund.


Unpopular across the country, PPACA has generated endless controversy and extensive litigation.

National Federation of Independent Business v. Sebelius

The first PPACA challenge to receive Supreme Court review concerned the PPACA’s individual mandate.[6]  In NFIB v. Sebelius, the Supreme Court held that the individual mandate could not be upheld as a valid exercise of the Commerce Clause.[7] The Court stated that the Commerce Clause authorizes Congress to regulate interstate commerce, but does not encompass the authority to order individuals to engage in interstate commerce.[8]

The Supreme Court did, however, uphold the constitutionality of the individual mandate as a tax, even though Democrats strenuously insisted throughout the legislative process that the individual mandate was not a tax.[9]  In his majority opinion, Chief Justice Roberts wrote that it was “reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.”[10] Thus, the Court upheld the individual mandate under the Taxing and Spending Clause of the Constitution.[11] 

The Supreme Court also struck down another portion of the PPACA: the Medicaid expansion provision. The Court held that Medicaid expansion is unconstitutionally coercive of states because states did not have adequate notice to voluntarily consent, and the Secretary could withhold all existing Medicaid funds for state noncompliance. The Court concluded that the appropriate remedy was to limit the Secretary’s enforcement authority.[12]

Contraception Mandate - Burwell v. Hobby Lobby Stores, Inc.

In January 2012, the U.S. Department of Health and Human Services (HHS) issued a regulation under the PPACA that required all employers to offer health plans that provide free contraceptives, sterilizations, and abortion-inducing drugs.[13] Numerous lawsuits were filed throughout the country challenging the constitutionality of the HHS mandate on the grounds that it violated the religious liberty of businesses and charities that were morally opposed to certain kinds of contraception that destroyed a fertilized embryo.

Several cases made their way to the Supreme Court and on June 30, 2014, the Court held in Burwell v. Hobby Lobby Stores that the contraception mandate violated the Religious Freedom Restoration Act of 1993 (RFRA). RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”[14]

Determining that RFRA’s protections extend to closely held corporations, the Court held that HHS’s contraception mandate substantially burdened Hobby Lobby’s exercise of religion. The owners of Hobby Lobby, the Hahn family, had a sincere religious objection to providing birth control that may result in the destruction of an embryo.[15] Thus, the HHS mandate forced Hobby Lobby to make the choice between complying with a law that violated its beliefs or receiving annual fines of $475 million.[16] The majority opinion, authored by Justice Alito, rejected the argument that Hobby Lobby’s “beliefs were flawed” and concluded that the potential fines imposed a substantial burden on the exercise of religion.[17]

Finally, the Court held that the contraception mandate was not the least restrictive means of furthering the government’s goal. The Court noted that the government had already exempted tens of millions of other citizens,[18] and found that the Government could have simply decided to subsidize the four forms of contraceptives that destroyed a fertilized embryo.[19]

The Court’s decision in Hobby Lobby controlled the outcome in several other cases challenging the HHS mandate, including the seven cases filed by the ACLJ, two of which were before the Supreme Court.[20] In addition to representing its clients, the ACLJ filed a “friend-of-the-court” brief in Hobby Lobby.[21]


Origination Clause Cases - Hotze v. Sebelius andSissel v. U.S. Dep’t of Health & Human Servs

The Supreme Court’s determination that the individual mandate was a tax spawned a new constitutional theory upon which to challenge the PPACA. The Origination Clause of the Constitution requires that “all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other bills.”  If the individual mandate is indeed a tax, then it should have originated in the House.[22]

Currently, two lawsuits are pending in federal courts that challenge PPACA on the grounds that it violates the Origination Clause because it was submitted to the House by the Senate via a “shell bill.”[23] A “shell bill” is where the Senate takes a bill that was proposed to it by the House and amends it substantially, sometimes to the extent that the bill takes on an entirely different purpose, and then resubmits it to the House under the original House number. This has been done in the past, but never to the extent that occurred with the passing of the PPACA.

In passing the PPACA, the Senate actually removed all of the text of the House’s bill, including its name, substituted a different bill and then resubmitted it to the House. The House number was the only aspect of the original bill that remained. Pacific Legal Foundation, who is representing Matt Sissel, argues that such a drastic change is a violation of the Origination Clause.[24] Both cases are pending before federal appellate courts.

Subsidy Eligibility Case: Halbig v. Sebelius

Another case, Halbig v. Sebelius, poses a substantial threat to the long-term viability of the PPACA because it could severely restrict enrollment. The PPACA’s  language is clear that subsidies are only available to those enrolled in a state-run healthcare exchanges.[25] This provision was intended to induce states to open healthcare exchanges, so that their residents would be eligible for federal subsidies to assist with health insurance premiums.  For a number of reasons, however, thirty-four states refused to establish healthcare exchanges.[26] The small number of state-run healthcare exchanges makes a correspondingly small number of individuals eligible for subsidies. If only those enrollees in states that created exchanges were eligible for subsidies, an enormous number of people would be unable to afford coverage, and would therefore claim an exemption from the individual mandate. The law’s survival depends upon high enrollment which in turn depends upon federal subsidies for a substantial number of enrollees.[27]

The Obama administration has argued, however, that the PPACA should be interpreted to provide federal subsidies to all enrollees regardless of whether they enroll in a federally-run healthcare exchange, or in a state-run exchange.[28] The administration’s argument is another of many attempts to violate the separation of powers by altering the PPACA.  In Halbig v. Sebelius, individuals and small businesses have challenged the Obama Administration’s interpretation, arguing that the plain language of PPACA, as well as its legislative history, contradicts the Administration’s reading of the law. The case is currently pending before the Court of Appeals for the D.C. Circuit.[29] Should the plaintiffs prevail, individuals living in the thirty-four states without state-run healthcare exchanges would not qualify for subsidies.[30] The resulting decrease in enrollment could eventually doom the PPACA.


Christian Alternatives to the PPACA

If you are unable to obtain affordable insurance through the Healthcare Exchanges, or through an employer, you may be able to secure health coverage through a Christian healthcare sharing program.   The PPACA contains a special exemption from the Individual Mandate for members of healthcare sharing programs.[31] 

Christian medical sharing programs are not insurance companies, and there is no guarantee that all medical bills will be paid. They are ministries that connect believers as a means of equipping the body of Christ to provide for the medical needs of its members. Members put aside a certain amount of money every month, which then goes to other Christians who need help paying their medical bills. For example, Medi-Share’s monthly fees vary, but its website states that instead of monthly premiums, Medi-Share members share in each other’s medical bills and on average pay 20% to 30% less for healthcare.[32] Members of these programs can be confident that monthly premiums are not contributing to providing abortions for others.   The following three programs are well established Christian medical sharing programs:

  1. Medi-Share:
  2. Christian Healthcare Ministries:
  3. Samaritan Ministries:

Obtaining a Health Insurance Plan that Excludes Abortion Coverage

Those who are forced to obtain insurance through a PPACA healthcare exchange may obtain insurance that does not cover abortion. Twenty-four states –  Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wisconsin – have passed laws that ban all plans in their Healthcare Exchange from offering coverage for elective abortion.[33] Eight states have also banned private insurers outside the exchange from offering coverage for abortion as well.[34] Most states include exceptions for life endangerment, rape or incest.[35]

Additionally, the PPACA does require all the federal healthcare exchanges to offer one policy that excludes abortion coverage.[36] If you are signing up in a state that has not banned insurance policies from covering elective abortion, be sure to ask which federal plan does not provide coverage for abortions.

If you are already insured through a private insurance company or your employer, you may be able to maintain your current plan if your insurance company or your employer so chooses.  However, keep in mind that the PPACA intends for policies obtained in the individual market to be cancelled precisely so that those covered would be forced to buy their insurance through the healthcare exchanges.[37] 

[1] Andrew C. McCarthy, Obama’s 5% Con Job (November 18, 2013), available at

[2] Scott Gottlieb, Health Plan Premiums Are Skyrocketing According To New Survey Of 148 Insurance Brokers, With Delaware Up 100%, California 53%, Florida 37%, Pennsylvania 28%, (April 4, 1014), available at

[3] A Guide to the Supreme Court’s Affordable Care Act Decision, The Henry J. Kaiser Family Foundation 2 (2012),

[4] Id.

[5] IRS Enforcement of Individual Mandate Destined For Failure, available at

[6] Litigation Backgrounder-Updated September, 2012, supra note 1 at 3.

[7] NFIB v. Sebelius, 132 S. Ct. 2566, 2573 (2012). The ACLJ filed a “friend-of-the-court” brief in opposition to the individual mandate.

[8] Id.

[9] Litigation Backgrounder- Updated September, 2012, supra note 1 at 5.

[10] NFIB, 132 S. Ct. at 2608.

[11] Id.

[12] A Guide to the Supreme Court’s Affordable Care Act Decision, The Henry J. Kaiser Family Foundation 2 (2012),

[13] See 77 Fed. Reg. 8725 -8726 (2012).  See also ;

[14] 42 U.S.C. §§ 2000bb-1(a), (b).

[15] Id. at 32.

[16] Id.

[17] Id. at 37-38.

[18] Id. at 28.

[19] Id. at 41, 43.

[20] Gilardi v. U.S. Dep’t of Health and Human Servs., No. 13-567, 2014 U.S. LEXIS 4695 (2014); Burwell v. Korte, No. 13-937, 2014 U.S. LEXIS 4703 (2014).

[21] Brief of American Center for Law and Justice and Twenty-One Family Business Owners as Amici Curiae in Support of Hobby Lobby and Conestoga, available at

[22] See generally Litigation Backgrounder- Updated September, 2012, supra note 1 (arguing that if the legislation is a tax, under the Origination Clause, it must have been introduced in the House of Representatives).

[23] Hotze v. Sebelius, No. 4:13-cv-01318, 2014 U.S. Dist. LEXIS 3149; Sissel v. U.S. Dep’t of Health & Human Servs., 951 F. Supp. 2d 159 (D.D.C. 2013).

[24] Sissel, 951 F. Supp. 2d 159 (D.D.C. 2013). Although the District Court dismissed the suit, Pacific Legal Foundation has appealed to the Court of Appeals for the District of Columbia. Pacific Legal Foundation, available at

[25] Halbig v. Sebelius, No. 13-0623, 2014 U.S. Dist. LEXIS 4853, at *8; see also Jonathan Turley, Get ready for an even bigger threat to Obamacare, L.A. Times, June 30, 2014, available at

[26] Turley, Get ready for an even bigger threat to Obamacare.

[27] Id.

[28] Halbig, 2014 U.S. Dist. LEXIS 4853, at *2.

[29] Id.

[30] Id.

[31] PPACA § 1501.

[32] Medi-Share, (last visited Nov. 20, 2013).

[33] Ala.Code § 26-23C-3 (2013); Ariz. Rev. Stat. Ann. § 20-121 (2013); Ark. Code Ann. § 23-79-156 (2013); Fla. Stat. § 627.64995 (2013); Idaho Code Ann. § 41-1848 (2013); Ind. Code § 16-34-1-8 (2013); Kan. Stat. Ann. § 40-2,190 (2013); Ky. Rev. Stat. Ann. § 304.5-160 (LexisNexis 2013); La. Rev. Stat. Ann. § 22:1014 (2013); Miss. Code. Ann. § 41-41-97 (2013); Mo. Rev. Stat. § 376.805 (2013); Neb. Rev. Stat. § 44-8402 (2013); N.C. Gen. Stat. § 58-51-63 (2013); N.D. Cent. Code Ann. § 14-02.3-03 (2013); Ohio Rev. Code Ann. § 3901.87 (LexisNexis 2013); Okla. Stat. Ann. tit. 63, § 1-741.3 (2013); 18 Pa. Cons. Stat. Ann. § 3215 (West 2013); S.C. Code Ann. § 38-71-238 (2013); S.D. Codified Laws § 58-17-147 (2013); Tenn. Code Ann. § 56-26-134 (2013); Utah Code Ann. § 31A-22-726 (LexisNexis 2013); Va. Code Ann. § 38.2-3451 (2013); Wis. Stat. § 632.8985 (2013); see also Guttmacher Institute, State Insurance Policies In Brief, (July 1, 2014), available at

[34] Idaho Code Ann. § 41-1848 (2013); Kan. Stat. Ann. § 40-2,190 (2013); Ky. Rev. Stat. Ann. § 304.5-160 (LexisNexis 2013); Mo. Rev. Stat. § 376.805 (2013); Neb. Rev. Stat. § 44-8402 (2013); N.D. Cent. Code Ann. § 14-02.3-03 (2013); Okla. Stat. Ann. tit. 63, § 1-741.3 (2013); Utah Code Ann. § 31A-22-726 (LexisNexis 2013); see also Guttmacher Institute, State Insurance Policies In Brief, (July 1, 2014), available at

[35] Guttmacher Institute, State Insurance Policies In Brief, (July 1, 2014), available at

[36] PPACA § 1334(a)(6).

[37] Id.

As a healthcare provider employed at a private community hospital, do I have the right to pray with patients?

There is a difference between a private hospital, even a not-for-profit, and a state, county, or city hospital. In a government hospital you have First Amendment rights that apply in this situation and in a private hospital you do not. However, here's what I suspect: there is probably a misunderstanding on the part of the hospital's administrator that if you were to pray with a patient as an employee, the hospital would somehow be violating the patient's rights or creating a problem. But there's nothing in federal law that prohibits you from praying with a patient who requests prayer and nothing that would get the employer in trouble because you prayed with the patient's permission. Now, the difficulty is this: because it is a private hospital, hospital employees can't mandate prayer with patients, but prayer can be allowed. And, if the hospital is offering holistic medical practices and healing hands organizations, then they should have no problem with your simply praying for a patient. Prayer is a common practice that is not illegal. We had a case involving prayer in a doctor's office that went to Federal Court. We were very successful in defending that. But again, I think you have a situation here where there's probably miscommunication or misunderstanding.