The presidential election and the U.S. Supreme Court may have secured the linchpin of the federal health care reform law — the mandate to purchase insurance — but the litigation beat goes on.

On December 14, the U.S. Court of Appeals for the D.C. Circuit will hear two nonprofit colleges’ appeal that their challenge to the Affordable Care Act’s contraception coverage provisions should be allowed to go forward. The influential appellate court’s ultimate ruling could set the tone for how other courts handle the roughly 40 cases around the country making similar legal arguments.

The contraception cases are just one of four types of challenges facing a hard slog through the lower courts as an aggressive and often successful federal government presses standing, ripeness and other defenses to the suits.

“When there is enough of a political incentive, there will always be constitutional litigation,” said Bradley Joondeph of Santa Clara University School of Law and author of the ACA Litigation Blog. “I have little doubt there will continue to be litigation. I would think the election takes a little steam out of that. Although maybe it cuts the other way — [the opponents'] last best hope is the courts.”

Last hope or not, the organizations and lawyers behind the litigation show no signs of discouragement and continue to draw new parties into new lawsuits.

CONTRACEPTIVE SERVICES

The D.C. Circuit case is Wheaton College and Belmont Abbey College v. Sebelius. Both colleges are religious-affiliated institutions. In their original suit, they challenged federal ACA regulations that require certain group health plans to cover contraceptive services. They claimed violations of their rights under the First Amendment speech, free exercise and establishment clauses, and violations of the Religious Freedom Restoration Act and the Administrative Procedure Act.

The regulations exempt group health plans provided by “religious employers,” those who have as their purpose the inculcation of religious values, that primarily hire and serve persons who share the religious tenets of the organization, and that are nonprofit organizations under the Internal Revenue Code. Earlier this year, the Department of Health and Human Services (HHS) announced it would develop an additional solution to religious objections by nonexempt employers. In the meantime, it created a temporary safe harbor from enforcement for nonexempt, nonprofit employers with religious objections.

The safe harbor remains in effect until the first plan year that begins on or after August 1, 2013. For entities like Wheaton and Belmont Abbey, which have plan years that begin each January, the safe harbor will remain in effect until the plan year that begins January 1, 2014.

The safe harbor has been the primary roadblock in the way of these lawsuits. The two district judges in the Wheaton and Belmont Abbey cases dismissed for lack of jurisdiction after finding the colleges’ claims were not ripe and the colleges did not have standing. Because of the safe harbor and HHS’ ongoing process to find a solution, the courts said there was no imminent threat of enforcement actions against the colleges.

In their appeal, the colleges, represented by the Becket Fund for Religious Liberty, argue that the Obama administration’s “theoretical future plans” do not strip the federal courts of jurisdiction.

“The mandate is a final rule promulgated in the Code of Federal Regulations,” writes Kyle Duncan of the Becket Fund. “It is fit for review and it harms the Colleges now. The severe penalties it threatens impact planning and budgeting now. And the risk it poses to the Colleges’ ability to continue offering an employee health insurance plan interferes with hiring and retention now.”

The government counters that it is “not controverted” that “the challenged requirement is in the process of being amended and that the plaintiffs are protected by an enforcement safe harbor. The district courts correctly held that they would not offer advisory opinions with regard to regulations that have not been and likely never will be enforced against these plaintiffs.”

SUFFERING HARM

Emily Hardman of the Becket Fund said a “handful” of these cases have been dismissed. “That’s why the hearing before the D.C. Circuit is so critical,” she said. “They’re going to be directly addressing whether these cases are ripe for review.”

Ave Maria University, she noted, has filed a declaration in the case that says it is suffering harm now. Its employees wonder what will happen with their insurance and whether they should be looking for other jobs.

“A big issue for a lot of these nonprofits and universities, especially, is they have to make decisions on hiring and budgets well in advance,” she said. “Even though the administration has said it will put off enforcement until August, it doesn’t protect them from private lawsuits, which is a huge thing. We say this is ready for review right now. They are suffering harm.”

On October 31, the Thomas More Law Center in Legatus v. Sebelius won a preliminary injunction in the Eastern District of Michigan against the government’s enforcement of the contraceptive mandate in a challenge by a for-profit company whose owner-president asserted that his religious beliefs prohibited him from complying with the mandate. But a federal district court in Oklahoma on November 19 denied the Becket Fund’s request for a preliminary injunction in another for-profit case — Hobby Lobby v. Sebelius.

Hobby Lobby is a non-Catholic-owned business whose family owners claim their religious beliefs are violated if they have to provide coverage of the “morning-after pill” and the “week-after pill.”

Becket’s Hardman said, “The big difference comes between what the government says in the for-profit versus nonprofit cases. For the for-profit businesses, you give up your religious rights when you go into secular business, whereas the claims against the nonprofits are mostly just procedural.”

While these cases raise “very important” issues, the law will not rise or fall on the outcomes, said health law scholar Timothy Jost of Washington and Lee University School of Law.

“The main question is whether secular, for-profit employers can impose their religious beliefs on their employees,” he said. “I think that’s a serious question. These are people with serious, deeply held religious beliefs. On the other hand, this is a compelling public health and gender equality issue.”

A TAXING ISSUE

Santa Clara’s Joondeph said he is watching closely a case in Oklahoma, which challenges a recent Internal Revenue Service rule that extends tax credits and subsidies to the purchase of health insurance in federally operated health insurance exchanges created in states that have refused to establish their own exchanges.

In State of Oklahoma v. Sebelius, Oklahoma Attorney General Scott Pruitt argues that the ACA only authorizes the tax credits and subsidies to purchases in state-operated exchanges. Oklahoma has resisted creating a state exchange. The subsidies and credits, according to Pruitt, are key to the calculation and collection of penalties on employers. He argues the rule is unconstitutional because it violates state sovereignty.

Michael Cannon of the Cato Institute and Jonathan Adler of Case Western Reserve University School of Law were the first to develop the legal argument that the IRS rule lacks statutory authority.

“It’s a wonderful legal problem,” said Joondeph. “Obviously Congress, when creating these incentives, wasn’t thinking about this distinction. It wanted to create subsidies or penalties on employers based on whether they were getting insurance through these exchanges. You either get insurance for employees yourself or you get the equivalent by subsidizing their purchase through an exchange.

“In that context, it doesn’t make any sense to distinguish between state-run and federally run exchanges,” he said. “It wasn’t anticipated that a fair number of states would opt out of exchanges. The actual language refers to state exchanges. Can the IRS effectively ignore the actual words of the statute and say the statute doesn’t make any sense if you make this distinction? It’s a big deal to the operation of the statute. It would be a big kink in the operation of the subsidies.”

WRONG HOUSE?

The Department of Justice also is in Washington district court defending the health care law from a more fundamental challenge to its constitutionality. In Sissel v. U.S. Dept. of Health and Human Services, the Pacific Legal Foundation, representing small-business owner Matt Sissel, contends the law violates the Constitution’s origination clause.

The origination clause states, “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other bills.” The Senate inserted the ACA’s provisions into a “shell” bill, a House-passed bill whose contents were stripped and replaced by the ACA amendments.

Courts have upheld the shell-bill procedure but none as extreme as what was done with ACA, according to Paul Beard, counsel of record for the Pacific Legal Foundation. The government has filed a motion to dismiss, and Beard expects his reply to be filed by the end of this month.

“We’ve got good grounds on the origination clause,” he said. “There are arguments on both sides, but there have been only a handful of challenges on the origination clause. We’re poised to take this up again [on appeal] if we have to.”

Some constitutional scholars have called the challenge a long shot because courts generally have applied a standard that is very deferential to Congress in those challenges.

And finally, Liberty University is awaiting the Supreme Court’s decision on its petition for rehearing in its ACA challenge, Liberty University v. Geithner. The university’s petition was denied last June, but it is asking the justices to vacate and remand the lower court ruling so its unheard religious challenges to the individual and employer mandates can be considered by the U.S. Court of Appeals for the Fourth Circuit.

Marcia Coyle can be contacted at mcoyle@alm.com.