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Supremes allow new challenge to Obamacare

Posted By Bob Unruh On 11/26/2012 @ 12:07 pm In Faith,Front Page,Health,U.S. | No Comments

The U.S. Supreme Court today ordered a federal appeals court to review Liberty University’s claim that Congress violated the Christian school’s religious freedoms by forcing it to provide federally mandated insurance and requiring payment for abortion-related services.

“I am very pleased with the high court’s ruling,” said Mat Staver, founder and chairman of Liberty Counsel, which is fighting the case on behalf of Liberty University.

“Today’s ruling breaths new life into our challenge to Obamacare. Our fight against Obamacare is far from over,” he said.

Staver contended Congress exceeded its power by forcing every employer to provide federally mandated insurance.

“But even more shocking is the abortion mandate, which collides with religious freedom and the rights of conscience,” he said.

The case on behalf of the university and Michele Waddell and JoAnne Merrill asked the Supreme Court to reverse an order from the U.S. 4th Circuit Court of Appeals, which denied a petition for review.

“Specifically, petitioners request that this court enter an order granting, vacating and remanding the petition because the Fourth Circuit’s determination that the Anti-Injunction Act deprived it of subject matter jurisdiction was overruled by this court in National Federation of Independent Businesses v. Sebelius.”

The NFIB decision earlier this year, which hinged on the vote of Chief Justice John Roberts, declared Obamacare a tax, making it the largest tax increase ever for American citizens.

Liberty Counsel had filed the petition for rehearing because it said the Richmond, Va., appeals court should hear the arguments on the constitutional issues at hand. Liberty Counsel said the action could pave the way for the case to return to the Supreme Court in 2013.

Specifically at issue are the demands that employers pay for government-listed health care coverages, including abortifacients and other services that Christians and others cannot accept because of their religious beliefs.

The constitutional issue is the First Amendment’s Free Exercise of Religion Clause and the question of whether the government can order citizens to violate their faith. Also at issue is the federal Religious Freedom Restoration Act.

In 2010, Liberty Counsel filed the first private lawsuit against Obamacare on the day it was signed into law. In 2011, an appeals court in Richmond, Va., ruled that the Anti-injunction Act barred the court from addressing the merits in the Liberty University case, which challenged the individual mandate (Section 1501) and the employer insurance mandate (Section 1513) of Obamacare.

When the case previously was argued at the Supreme Court, the first day of oral argument was dedicated to the Anti-injunction Act, the issue that Liberty University’s case placed before the courts.

In the June decision, the Supreme Court ruled that the AIA does not apply to Obamacare. Therefore, Liberty Counsel asked the court to grant its petition — because it prevailed on the AIA claim — vacate the ruling of the court of appeals and send the case back to the court of appeals to consider the Free Exercise claim and the employer mandate, neither of which were decided by the Supreme Court.

Several weeks ago WND reported even the attorneys for Obama agreed that the case should be heard.

The law that ex-House Speaker Nancy Pelosi famously said had to be passed before Americans could “find out what is in it” seemed to raise concerns even for them.

“Respondents do not oppose petitioners’ request that the (Supreme) court reconsider its order denying review in this case, grant the petition for a writ of certiorari, vacate the court of appeals’ decision, and remand for further consideration,” said a submission to the high court signed by U.S. Solicitor General Donald Verrilli Jr. and others.

“Petitioners, Liberty University and two individuals who do not have health insurance coverage, brought this suit in the United States District Court for the Western District of Virginia,” the government brief to the high court explains. “As relevant here, they contended that the minimum coverage and employer responsibility provisions were beyond Congress’s Article I powers to enact and also that those provisions violate the First Amendment’s religion clauses and the equal protection component of the Fifth Amendment’s Due Process Clause.”

While the 4th Circuit ruled that the challenges were barred because of the Anti-Injunction Act, which says a “tax” must be paid before it can be challenged, the Supreme Court’s decision on Obamacare ruled that the penalties were in some cases a tax and other cases not.

Government attorneys in the brief said the Supreme Court’s ruling in National Federation of Independent Businesses, which called Obamacare constitutional, “held that the Anti-Injunction Act does not bar a pre-enforcement challenge to the minimum coverage provision.”

“The court of appeals incorrectly held that the Anti-Injunction Act bars petitioners’ challenges to the minimum coverage provision,” the government wrote. “Because of that jurisdictional holding, the court of appeals did not address any of petitioners’ challenges to that provision on the merits.

“In seeking rehearing … petitioners observe that the court of appeals’ jurisdictional holding also prevented that court from considering on the merits their claims based on the First and Fifth Amendments. … Under the circumstances of this case, respondents do not oppose further proceedings in the court of appeals to resolve them, including under the Anti-Injunction Act with respect to petitioners’ challenge to the employer responsibility provision.”

The 4th Circuit had ruled 2-1 that the Obamacare “tax” had to be paid before a court could entertain a challenge. But then the Supreme Court determined in another case, NFIB, that the Anti-Injunction Act does not apply to the individual mandate.

It failed, however, to make a decision in that dispute, leading Liberty University to seek a rehearing.

Liberty University contends both the individual and employer mandates are unconstitutional on the grounds that they infringe upon the freedom of religious expression.

While the Obama administration insists there is no taxpayer funding of abortion in the laws, Staver pinpoints why he believes that position is patently false.

“It funds it in two ways,” said Staver. “First all, for the individual, for the first time in history, it requires each individual to pay a particular fee and that goes directly into an abortion fund and that fund funds abortion. This fee doesn’t go into a general fund, some of which funds other surgeries or medical treatment, some of which might fund abortion. No, this goes into a specific fund that funds abortion. (It’s the) very first time in history you can trace the dollar to the actual abortion.”

Staver said the provision forces individuals and business leaders to subsidize something they vehemently oppose.

“It requires religious employers, and other employers but certainly religious employers to also fund abortion as well,” he said. “And for Liberty University, a Christian university, and for others that’s simply a line we can’t cross. That is a direct collision with the free exercise of religion.”

Staver said an ultimate victory in the case could devastate Obamacare, especially if the individual mandate goes down.

“It could ultimately make a big hole in the bottom of the Obamacare boat or completely torpedo it and sink it altogether.”

Several other individual lawsuits are pending on behalf of Christian company owners who say the orders require them to violate their religious faith.

Already, three different federal judges have decided to issue injunctions preventing enforcement of the mandate against the companies in those cases until a resolution is reached.

“The decision in NFIB abrogated the Fourth Circuit’s ruling that the AIA deprived it of subject matter jurisdiction. Consequently, petitioners’ remaining claims should be subject to adjudication by the lower courts,” the Liberty Council petition said.


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