Nebraska, Joined by Several Other States, Files Suit in Federal Court Seeking to Block Health Reform

February 28, 2012 by Jessica Boone

On February 23, 2012, Jon Bruning, Attorney General for the State of Nebraska, joined by Attorneys General from South Carolina, Michigan, Texas, Florida, Ohio, and Oklahoma, as well as a few individuals and several Catholic institutions, filed suit against the Department of Health and Human Services, the Department of the Treasury, and the Department of Labor.  The suit involves an attack on the requirement under the Patient Protection and Affordable Care Act ("PPACA") that requires religious organizations, institutions, care providers, outreach groups, and social service agencies, among others, to directly subsidize contraception, abortafacients, sterilization, and other related medical services (i.e., "preventative services"), in contravention of the organizations’ religious beliefs. 

The Catholic Church, for one, has long voiced its opposition to the use of any type of medical interference with human reproduction.  Accordingly, such organizations affiliated with the Catholic Church typically exclude these medical services from their group health insurance plan.  Prior to PPACA, the Catholic Church and its many affiliated entities along with others opposed to offering certain reproductive medical services, were permitted to structure their health plans to exclude services that were deemed to be a medical interference with reproduction. 

Under PPACA, these organizations will be required by law to subsidize and pay for the services to which they fundamentally object, unless the organization falls within a very narrow "religious employer" exemption carved out in final rules promulgated by the U.S. Department of Health and Human Services (see 77 FR 8725, Feb. 15, 2012).  The State of Nebraska and the other plaintiffs in the suit allege that requiring such organizations to subsidize and pay for the contested "preventative services" violates various clauses of the First Amendment of the U.S. Constitution. 

While the constitutionality of the so-called "Individual Insurance Mandate," as well as the entire Act,roil before the Supreme Court in the coming year, this newest lawsuit represents an additional attack on PPACA’s reach.  As the country eagerly awaits resolution by the Supreme Court of whether the entire bill is unconstitutional and, separately, whether particular parts of the bill are unconstitutional, the latest challenge to the First Amendment rights of U.S. citizens will likely begin to gain steam.  In the event that the United States Supreme Court declines to strike down the entire bill, this challenge will represent a new battle ground for the Obama administration.

Individuals and entities that offer or receive insurance coverage affected by the new requirements mandating that reproductive services be covered should monitor this lawsuit closely.

For more information on this most current challenge to PPACA or on health care reform generally, please contact the health law attorneys at Erickson|Sederstrom.