July 11, 2013 4th Circuit published opinion

Liberty University, Incorporated v Lew 

Liberty challenged the employer mandate in the Affordable Care Act and two individuals challenged the individual mandate. The district court dismissed for failure to state a claim. The panel, in a jointly authored opinion, affirmed. It first held that Liberty was not barred by the Anti-Injunction Act from bringing suit as the Affordable Care Act characterizes the penalty payments as penalties not taxes and the stray uses of “tax’ in the mandate does not change the outcome. The panel held that Liberty and the individuals had standing as they plausibly alleged increased costs and administrative burdens. The panel held the employer mandate is within the commerce clause power because Liberty and other employers are already engaging in economic activity, health insurance is compensation and Congress has the power to regulate compensation in the interstate commerce context, and health insurance can affect interstate mobility and thus substantially affects commerce. The panel held that the mandate is also a tax within the power of Congress to enact as the individual mandate was so held by the United States Supreme court and the employer mandate is substantially similar to the individual mandate. The panel finally rejected the religion based attacks on the mandate holding that the mandate is a statue of general applicability that has at most an incidental effect on religious freedom, there are restrictions on the use of premiums and tax dollars in the provision of abortion and those who object can refuse to buy insurance and pay penalty instead and thus have a lawful choice that eliminates any burden on their religious freedom. The panel held two exemptions for religious groups that provide their own health coverage and certain health care ministries were sufficiently secular to pass the Lemon test. The panel finally held that Liberty’s challenged to certain contraception regulations were not properly before the court as they were not included in the operative compliant or at any stage before remand to the panel from the Supreme Court.

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