The Patient Protection and Affordable Care Act (“PPACA”), which became law on March 23, 2010, is an unprecedented power grab by the federal government. The individual mandate imposed under the PPACA, referred to by some as “ObamaCare” or “Healthcare Reform,” takes effect in January 2014, and requires nearly every American to purchase acceptable insurance or face an annual penalty from the IRS.This penalty increases every year the individual does not purchase health insurance.
While the political environment around the PPACA is rapidly changing since its disastrous roll out, the PPACA remains the law of the land. The ACLJ is currently urging the Obama Administration to delay the individual mandate, and has threatened a lawsuit if the President attempts to impose fines on Americans who have been unable to obtain health insurance on the Administration’s malfunctioning Healthcare Exchange website.
As more Americans continue to lose their health care policies, the political pressure will mount on Democrats to remedy the disaster. Currently, almost 5 million Americans in the individual health care 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 a federal court in Washington D.C., the Obama Administration has conceded that next year millions more Americans who have employer-provided health insurance will see changes and price increases in their policies caused by Obamacare. Thus the PPACA will adversely affect the vast majority of Americans who have maintained health care policies.
In addition to the huge outcry that is likely to continue as Americans see their health insurance options reduced and the cost of such policies increased, the PPACA Healthcare Exchanges may collapse from a phenomenon called the “death spiral.” To void a “death spiral,” the Exchanges must sell insurance to a significant number of young, healthy Americans, so that they can subsidize healthcare for older sicker Americans who also buy policies on the Exchanges. If enough young healthy Americans do not sign up for policies on the Healthcare Exchanges, the Exchanges will suffer a financial collapse, and those who do purchase policies from the Exchanges will see their premiums skyrocket. Additionally, the PPACA provides for taxpayer bailout of insurance companies who go bankrupt from the “death spiral.”
President Obama’s announcement on Thursday, November 14, 2013, that insurance companies may continue to offer plans that they had canceled raises the likelihood of the death spiral because young healthy Americans who lost their health care policies and who face much higher premiums on the Healthcare Exchanges are most likely to seek reinstatement of their old policies.
In addition to severe website problems dis-incentivizing the young from purchasing health insurance on the Exchanges, the PPACA provides an initially minimal incentive to healthy young Americans to buy expensive policies that they will rarely need. The PPACA imposes a small fine which is collectible by the IRS, but Section 5000A(g)(2) of the IRC limits the means the IRS may employ to collect the penalty established in the section. 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 NFTL [notice of federal tax lien] or levying any property in an effort to collect the penalty.”
After passage of the PPACA, several lawsuits were filed challenging various portions of the law, including the individual mandate. The ACLJ filed a lawsuit challenging the individual mandate. When the Supreme Court of the United States granted review in one of the lawsuits, the ACLJ filed an amicus curiae brief with the Court.
The Supreme Court Decision - National Federation of Independent Business v. Sebelius
In June 2012, the Supreme Court of the United States held that the PPACA’s individual mandate could not be upheld as a valid exercise of the Commerce Clause.  The Court noted that the Commerce Clause authorizes Congress to regulate interstate commerce, but does not encompass the authority to order individuals to engage in interstate commerce.
Despite the fact that Democrats, continuously throughout legislative negotiations, insisted that the individual mandate was not a tax, the Supreme Court decided that the only way to uphold the individual mandate was as a tax. In the 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.” Thus, the Court upheld the individual mandate under the Taxing and Spending Clause of the Constitution.
The Supreme Court did, however, strike down another portion of the PPACA, the Medicaid expansion provision. The Court held that the 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 non-compliance. The Court held further that the appropriate remedy was to limit the Secretary’s enforcement authority.
CONTINUING THE FIGHT
Challenging the PPACA under the Origination Clause:
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 must have originated in the House. Currently, three lawsuits are pending in federal court that challenge Obamacare on the grounds that it violates the Origination Clause because it was submitted to the House by the Senate via a “shell bill.” 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 Obamacare, 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 in this case, argues that such a drastic change is a violation of the Origination Clause. Although the District Court dismissed the suit, Pacific Legal Foundation has appealed to the federal Court of Appeals for the District of Columbia.
Opposing the HHS Abortion/Contraception Requirement in the Employer Mandate:
In January 2012, the U.S. Department of Health and Human Services (HHS) issued a regulation under the PPACA that requires all employers to offer health plans that provide free contraceptives, sterilizations, and abortion-inducing drugs. The ACLJ submitted formal comments opposing the regulation, along with many other groups. Due to opposition to the HHS mandate, in February 2012, President Obama offered an “accommodation” that required health insurance providers to pay for the services to which religious employers have moral objections. However, this “accommodation” does not provide an acceptable solution to the objection raised by religious employers, as it still effectively provides for these services through the health plans offered by the employer.
Since the regulations have been passed, the ACLJ has filed seven federal lawsuits against the abortion/contraception mandate, including the first lawsuit filed on behalf of a for-profit business and its owner (e.g., here and here).  To date, we have obtained injunctions against the application and enforcement of the Mandate for all of our clients.
The ACLJ delivered oral arguments before Federal Courts of Appeal in two of these cases in September and October 2013. Arguments were given in October before the United States Court of Appeals in Washington, D.C. On November 1, that court issued a favorable opinion stating that:
[T]he burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ we fail to see how the standard could be met.
While the court’s decision is correct, it left the critical question of whether the Gilardis’ companies have viable claims based on the Gilardis’ religious beliefs unanswered. Seeking an answer to this question, the ACLJ filed a certiorari petition with the United States Supreme Court in November 2013.
Additionally, we have filed more than fifteen “friend-of-the-court” briefs in support of those who are also challenging the Mandate (e.g., here and here).
OPTIONS AVAILABLE TO YOU
Obtaining a Health Insurance Plan that Excludes Abortion Coverage:
Twenty-three states – Alabama, Arkansas, Colorado, Georgia, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Massachussetts, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, 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. Eight of those states have also banned private insurers outside the exchange from offering coverage for abortion as well. Most, but not all, include exceptions for life endangerment, rape or incest.
In addition, the PPACA does require all the Healthcare Exchanges to offer one policy that excludes abortion coverage. If you are signing up in a state that has not banned insurance policies from covering elective abortion, be sure to do the necessary research to identify which 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. Keep in mind, however, that the PPACA intends that most Americans who obtained insurance in the individual market would have their policies discontinued precisely so that they would be forced to buy their insurance through the Health Care exchanges.
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 Affordable Care Act contains a special exemption from the Individual Mandate, requiring most Americans to purchase insurance by 2014, for members of healthcare sharing programs.
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 others medical bills and on average pay 20% to 30% less for healthcare. 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:
- Medi-Share: www.medi-share.org.
- Christian Healthcare Ministries: www.chministries.org.
- Samaritan Ministries: www.samaritanministries.org.
 A Guide to the Supreme Court’s Affordable Care Act Decision, The Henry J. Kaiser Family Foundation 2 (2012), http://kff.org/health-reform/issue-brief/a-guide-to-the-supreme-courts-affordable/.
 Andrew C. McCarthy, Obama’s 5% Con Job (November 18, 2013), available athttp://www.nationalreview.com/article/364176/obamas-5-percent-con-job-andrew-c-mccarthy.
 David Nather, Obamacare-So-What-Could-Go-Wrong-Next (11/18/2013), available athttp://www.politico.com/story/2013/11/obamacare-so-what-could-go-wrong-next-99957.html
 Marco Rubio, No Bailouts for Obamacare (November 19, 2013), available at http://online.wsj.com/news/articles/SB10001424052702303985504579205743008770218.
 IRS Enforcement of Individual Mandate Destined For Failure, available athttp://www.coburn.senate.gov/public/index.cfm?a=Files.Serve&File_id=fd932516-3dc2-486f-a4de-81687c7c6915.
 Litigation Backgrounder- Updated September, 2012, supranote 1 at 3.
 N.F.I.B. v. Sebelius, 132 S. Ct. 2566, 2573 (2012).
Litigation Backgrounder- Updated September, 2012, supra note 1 at 5.
N.F.I.B. v. Sebelius, No. 11-393, Slip. Op. at 58 (June 28, 2012).
A Guide to the Supreme Court’s Affordable Care Act Decision, The Henry J. Kaiser Family Foundation 2 (2012), http://kff.org/health-reform/issue-brief/a-guide-to-the-supreme-courts-affordable/.
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).
Hotze v. Sebelius (Southern District of Texas); Pacific Legal Foundation v. Salazar (Eastern District of California); Sissel v. U.S. Dep’t of Health & Human Servs. (District Court for the District of Columbia).
Id. at 7-8.
Pacific Legal Foundation, http://www.pacificlegal.org/cases/Tax-raising-Affordable-Care-Act-started-in-wrong-house-of-Congress (last visited Nov. 13, 2013).
STAND UP FOR RELIGIOUS FREEDOM: STOP OBAMA’S HHS MANDATE, ProLifeAction.Org & Citizens for a Pro-Life Society (2012), http://standupforreligiousfreedom.com/docs/HHSMandateFactSheet.pdf.
Francis J. Manion, Appeals Court Rules for the Gilardis but Leaves Key Questions Unresolved, ACLJ (Nov. 1, 2013, 2:07 PM), http://aclj.org/obamacare/appeals-court-rules-gilardis-leaves-key-questions-unresolved.
Gilardi v. United States Dep’t of Health & Human Servs., No. 13-5069, slip op. at 20 (D.C. Cir. Nov. 1, 2013), available at http://media.aclj.org/pdf/gilardi-opinion-11-1-2013.pdf.
Manion, supra note 20.
Guttmacher Institute, State Insurance Policies In Brief, (November 1, 2013), available at http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf.
Medi-Share, www.Medi-Share.org (last visited Nov. 20, 2013).
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.