News Law and Policy

Obamacare Opponents May Have Reached a Dead End in Court

Jessica Mason Pieklo

Thursday's decision makes it much less likely the Supreme Court will intervene quickly in the dispute over whether the federal government can administer subsidies for health insurance purchased on its exchanges.

The D.C. Circuit Court of Appeals on Thursday granted a request by the Obama administration to have its full panel of judges review an earlier decision that found those who purchased health insurance on federally run exchanges can receive federal subsidies in the form of tax credits.

At issue in the lawsuit is an IRS regulation that interpreted the Affordable Care Act’s tax credit provision to apply to insurance purchased through the federal exchange.

Opponents of the health-care reform law argue that the IRS rule is not authorized by the ACA, which states the tax credits were for insurance bought through exchanges “established by the state.” The challengers claim the statutory language means tax subsidies were only meant to apply to those state-run exchanges.

In July a divided panel of D.C. Circuit judges ruled that people who purchase insurance through federal exchanges in the 36 states that declined to set up their own exchanges were not eligible to receive tax credits to help subsidize the cost of that coverage.

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The D.C. Circuit’s decision was announced the same day a different federal appeals court ruled the opposite and held that the federal government could offer subsidies for health insurance purchased through federally run exchanges.

Those challenging the federal government’s ability to administer subsidies for health insurance on the federal exchanges had requested the U.S. Supreme Court step in and resolve the issue.

But earlier this week, the Roberts Court granted a request by the administration for more time to respond to that request.

Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, a public interest law firm and advocacy organization, said Thursday’s decision by the D.C. Circuit Court of Appeals, along with the Roberts Court’s grant of additional time to the Obama administration to respond to that court filing, leaves the legal challengers at a dead end.

“Decisions this week by the D.C. Circuit and the U.S. Supreme Court have put these last-ditch challenges to the Affordable Care Act exactly in the position they deserve to be—virtually nowhere,” Wydra said in a statement.

Constitutional Accountability Center Senior Counsel Simon Lazarus echoed Wydra’s conclusion, noting that the D.C. Circuit’s decision to hear the case before its entire panel resolves, for the time being, any disagreement in the federal courts that would normally prompt Supreme Court intervention.

“On Tuesday of this week, the Supreme Court rejected the claims transparently fabricated by the challengers’ attorneys to rush the High Court into hearing an appeal of the case that the challengers lost at the Fourth Circuit,” Lazarus said in a statement. “Instead, the Court granted the federal government their entirely routine request for additional time to respond. Then, this morning, the D.C. Circuit decided to re-hear the case in which the challengers were victorious, and by so doing, eliminated any pretext  that immediate Supreme Court review is required to resolve a split between the Fourth and D.C. Circuits.”

In addition to providing another legal challenge to the Obama administration’s signature legislative achievement, the case presents an early test for the administration’s judicial appointments.

It was Republican concern over appointments to the D.C. Circuit Court of Appeals—considered to be the second most powerful court in the country—that led to last year’s Senate fight that prompted Democrats to reform filibuster rules. The full court, including Obama appointees Sri Srinivasan, Patricia Millett, Cornelia Pillard, and Robert Wilkins, has yet to decide a case together.

Oral arguments in Halbig v. Burwell are scheduled for 9:30 a.m. on December 17.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.


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