HEALTH CARE REFORM LEGAL UPDATE – WHERE ARE WE GOING

NOW?Vickie J. Williams

Associate Professor of LawGonzaga University School of Law

September 15, 2015

What is Settled by Courts

• Constitutionality of the substance of the ACA– Individual mandate (NFIB v. Sebelius)– Employer mandate (Hotze v. Burwell)– Methodology for passage (Sissel v. HHS, Hotze v.

Burwell – origination clause challenge).• Constitutionality of the IPAB (Coons v. Lew)• Unconstitutionality of requirement that states

expand their Medicaid programs (NFIB v. Sebelius)

What is Settled by the Courts (cont’d)

• Availability of insurance subsidies on federal exchange (King v. Burwell)

• Right of for-profit corporations to claim religious exemption from the contraceptive coverage mandate (Hobby Lobby v. Sebelius)

• Constitutionality of religious exemption to the individual mandate (Cutler v. HHS)

• Legality of requiring members of Congress and staff to purchase health insurance under the ACA with pre-tax employer contributions from the federal government (Johnson v. OPM – decided on standing grounds)

What is Not Settled by Courts• Legality of Obama administration’s payment of

cost-sharing reduction payments to insurers without an explicit appropriation from Congress (U.S. House of Reps. v. Burwell)– Currently at the D.C. District Court on government’s

motion to dismiss for lack of standing.• Administration’s delay of effective date of the

employer mandate (U.S. House of Reps. v. Burwell; Kawa Orthodontics v. Lew)– Kawa case on petition for cert. at SCOTUS, scheduled

for Sept. 28, 2015 conference)

What is Not Settled by the Courts

• Extent and nature of exemptions to contraceptive mandate available:– Legality of Obama administration’s

accommodation for religious non-profits objecting to contraceptive mandate (Little Sisters of the Poor v. Burwell and numerous others.)• Little Sisters case on cert. to SCOTUS

– Ability of secular non-profit organizations to claim exemption from contraceptive mandate (March for Life v. Burwell).