In May, the 4th Circuit heard oral arguments in
Liberty University, Inc. v. Lew (see
prior posting), a broader religious freedom challenge to the Affordable Care Act than most that are still pending. The suit claims that the ACA broadly permits federal funding of abortions and that it violates the Establishment Clause and equal protection clause because its narrow religious exemptions favor certain religious adherents. It also more narrowly challenges the contraceptive coverage mandate. As
previously reported, on July 2 the Treasury Department and the White House announced that the Administration was postponing enforcement of the Affordable Care Act's employer mandate until January 2015. On July 3, the Justice Department filed a letter (
full text) with the 4th Circuit reading in part:
Plaintiff ... has brought a pre-enforcement challenge to the large-employer tax that is authorized by 26 U.S.C. § 4980H. Our supplemental brief explained that this pre-enforcement challenge to Section 4980H is barred by the Anti-Injunction Act, and that it is also speculative whether Liberty University will owe a tax under Section 4980H.
We respectfully advise the Court that, yesterday, the Department of the Treasury announced that Section 4980H, which was due to take effect on January 1, 2014, will not take effect until January 1, 2015.... This one-year delay only underscores that Liberty University’s challenge is unripe.
On July 5, Liberty University filed a response (
full text) which reads in part:
Liberty’s challenge to the entire employer mandate is not moot. Even if enforcement were delayed, which it is not, Liberty still must act now to prepare for the implementation of the Act, and that itself is an injury. Regarding the abortifacient mandate, the Final Rules published by the Departments of Labor, Treasury, and Health and Human Services last week made clear the government has no intentions of altering this mandate....
Finally, the reporting delay pertains solely to the penalties imposed pursuant to 26 U.S.C. § 4980H, and not the additional $100 per employee per day penalty from a separate section not subject to this delay. See 26 U.S.C. § 4980D....
Liberty Counsel issued a
press release summarizing developments from its perspective.
