- The Washington Times - Wednesday, May 27, 2015

Obamacare opponents have been on a losing streak in federal courts over the past year, suffering setbacks as judges have ruled against them on challenges to the health care law’s constitutionality and efforts to carve out protections from its birth control rules on faith-based employers.

The opponents — chiefly Republicans and their allies — hope for a reversal of fortune next month when the Supreme Court decides a major case on Obamacare’s subsidies.

The 2010 law spawned an entire line of litigation that has reached the Supreme Court three times and gone through myriad appeals courts. Until recently, rulings could be predicted reliably based on whether the judges were appointed by Democrats or Republicans.

Until a year ago, Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against the law nearly 80 percent of the time, according to a Washington Times review of substantive federal appellate opinions on the Affordable Care Act.

But as the weighty constitutional issues have been settled and the cases turn to more technical matters, that ratio is changing. Democrat-appointed judges continue to uphold the law, backing it 19 out of 20 times in rulings over the past year. But Republican judges have broken ranks, with six of the 10 to rule on Obamacare supporting the administration’s interpretation of the law and thwarting challenges.

Appellate courts have turned back lawsuits that complain that the Affordable Care Act set up Medicare “death panels,” had been drafted in the wrong chamber of Congress or bestowed special favors to Capitol Hill employees. In many cases, they found plaintiffs couldn’t prove they were harmed by Obamacare.

A reason for the change could be that recent cases are more technical and delve into intricacies of the law’s origin and wording, whereas earlier challenges centered on major philosophical questions of government power, with which judges were more likely to differ based on ideology.

“I don’t think there’s any question that ideology influences decisions on the less-technical and more-political of legal decisions,” said Evan Lee, a professor at the University of California Hastings College of Law, citing Obamacare and abortion cases as examples.

Although a judge’s nominating party influences only so much, he said, appointees don’t always turn out as presidents plan, and judges tend to have “idiosyncrasies” that emphasize certain rights or other aspects of jurisprudence.

Chief Justice John G. Roberts Jr. devastated conservatives when he upheld Obamacare’s individual mandate requiring Americans to hold insurance as constitutional under Congress taxation authority. Meanwhile, two Democratic appointees to the court — Justices Elena Kagan and Stephen G. Breyer — dealt the administration a blow by holding that states could decide not to expand Medicaid without risking existing federal funding for the program.

Democrat-appointed judges or justices have decided against Obamacare three times in 47 rulings since 2011. Among Republican nominees, 12 out of 38 to rule have backed the health care law.

“Liberal and conservative jurists alike are also significantly influenced by the law when making decisions, such as by the text and structure of a statute,” said Amanda Frost, a law professor at American University. “Very few judges decide cases entirely as they prefer without paying attention to any of the legal constraints that should govern their decisions, and so ideology does not come close to explaining everything that goes into judicial decision-making.”

Analysts predict that the subsidies case, known as King v. Burwell, will come down to Chief Justice Roberts and Justice Anthony M. Kennedy, nominated by Republican presidents nearly two decades apart, who must decide whether Congress wanted Obamacare subsidies restricted to states that fully embraced the law and set up their own insurance exchanges.

“It seems to me what’s happening is King v. Burwell is the last hurrah for these grand challenges to the Affordable Care Act,” said Timothy Jost, a law professor at Washington and Lee University in Virginia, referring to the subsidies case before the court.

Meanwhile, three circuit courts have told religious nonprofits that they see no reason to shield them from the law’s contraception mandate, as the issue wends it way through the federal courts a second time.

A Reagan appointee on the U.S. Court of Appeals for the 7th Circuit wrote the second of those decisions, noting that Notre Dame University merely had to let the government know that it objected to the mandate.

Religious nonprofits argue that they are treated more stringently than for-profit entities, which must do nothing to opt out of coverage as the Health and Human Services Department rewrites regulations in line with last year’s decision.

The U.S. Court of Appeals for the D.C. Circuit ruled against Priests for Life, a pro-life ministry, in November. The 3-0 decision, by two Obama appointees and a Clinton appointee, said the nonprofit only had to fill out a form to opt out of coverage.

Similarly, three Democratic appointees on the 3rd U.S. Circuit turned back a prayer for relief from Geneva College and other plaintiffs in February.

Priests for Life asked the D.C. Circuit to reconsider its decision in a second hearing before the full court, but the nonprofit was turned away last week by the same three Democrat-appointed judges.

Three other judges would have given Priests for Life a second look. Each of them was appointed by a Republican president.

Religious liberty advocates haven’t given up, citing occasions in which the Supreme Court told lower courts to revisit their decisions in light of the Hobby Lobby decision.

“The cases will continue as they have,” Eric Rassbach, deputy general counsel of the Becket Fund for Religious Liberty, said after the Notre Dame defeat. “Every time these issues have reached the Supreme Court, the government has lost and the religious plaintiffs have been granted relief.”

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