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The Supreme Court’s decision in June to save the heart of Obamacare prompted opponents to regroup and try to find new ways to attack the president’s signature health reform.In his majority opinion, Chief Justice John Roberts ruled that Congress could use its taxing authority to force most citizens to buy health insurance or else pay a penalty.
Now that the controversial “individual mandate” has been upheld, opponents are continuing to fight other parts of the law.
Some companies have filed suits claiming a requirement that employers’ health insurance cover birth control violates their religious beliefs. That fight has at least a shot of succeeding before a Supreme Court that’s fiercely protective of religious liberty.
But every other challenge to the law is likely to fail miserably, several top Supreme Court lawyers told BI.
One of those challenges claims the law is unconstitutional because tax bills must start in the House of Representatives while Obamacare started in the Senate.
The other challenge, meanwhile, involves the insurance exchanges that must be set up in each state under the law. These exchanges allow a state’s citizens to shop for their own insurance and easily compare health plans.
If states refuse to set up exchanges, then the law authorizes the federal government to step in and do so. Conservative states claim the U.S. doesn’t have the authority to run the virtual insurance marketplaces.
The opponents’ arguments in both of these cases are just weak, experts said.
“Never in history has the court struck down a law because it was a tax that did not originate in the House. What was done here (using a House bill number) is frequently done,” says Erwin Chemerinsky, dean of the University of California, Irvine School of Law. “Nor is the court likely to say that state sovereignty prevents the federal government from acting as it wants to set up exchanges.”
UCLA constitutional law professor Adam Winkler acknowledged that the Supreme Court could surprise everybody and strike down parts of Obamacare. But he predicted that health reform would withstand every challenge, while acknowledging the contraception fight has some merit.
“The other challenges are shots in the dark brought as part of a seemingly desperate effort by opponents of Obamacare to do something – anything – to stop the law from going into effect,” Winkler said.
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