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When the Supreme Court upheld the heart of the Affordable Care Act in June, opponents scrambled to find new ways to bring down President Obama’s signature health care reform.The Supreme Court shocked many when it ruled Congress could use its taxing powers to force most U.S. citizens to buy health insurance of their own, or pay a penalty.
The challenges that followed included a suit claiming the bill was unconstitutional because it started in the Senate and not in the House, where the Constitution requires tax bills to start.
States are also fighting insurance exchanges that will enable their citizens to buy subsidized insurance. Private companies, with religious owners, are waging a battle all their own against the requirement that employers’ insurance cover birth control.
But only one of these challenges stands much of a chance at succeeding, several top Supreme Court experts told Business Insider. That’s the fight over the contraception mandate, which several private business owners say violates their religious beliefs.
“The contraception requirement for private employers is in trouble as applied to religiously oriented employers,” says Tom Goldstein, a high court lawyer and founder of SCOTUSblog. “That’s the serious one.”
The key issue will be whether the contraception requirement violates the Religious Freedom Restoration Act, which aims to prevent laws that place too heavy a burden on people’s ability to express their religion.
“The legal question is difficult because the RFRA is very protective of religious liberty,” Duke law professor Neil Siegel told BI in an email message.
The Supreme Court is more likely to hear the contraception case than the other challenges because it “always seems willing to save a spot or two on the docket for a religion clause case,” Supreme Court veteran Carter Phillips says.
If the high court takes the case, its more conservative justices could find a lot to dislike about the contraception mandate, UCLA constitutional law professor Adam Winkler says.
Just last year, the high court came down on the side of religious freedom, finding the government had to stay out of hiring and firing decisions of religious organisations.
“The other challenges are shots in the dark,” Winkler said.
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