Supreme Court Sends Free Exercise Challenge To Affordable Care Act To 4th Circuit

Yesterday, in an unusual move, the U.S. Supreme Court revived a 4th Circuit case which challenges the Affordable Care Act (ACA) on 1st Amendment, 14th Amendment and RFRA grounds. In Liberty University v. Geithner, plaintiffs claim, among other things, that the ACA permits federal funding of abortions in violation of the free exercise clause and the Religious Freedom Restoration Act. They also claim that the ACA violates the Establishment Clause and equal protection clause because the narrow religious exemptions in the Act favor certain religious adherents. The 4th Circuit dismissed the case, holding that the federal tax Anti-Injunction Act barred the lawsuit, and the Supreme Court declined to review that decision. Plaintiffs, however asked for a rehearing on the decision to deny review, since earlier this year, in National Federation of Independent Business v. Sebelius, the Supreme Court held that the Anti-Injunction Act does not bar a challenge to the ACA.  Yesterday, the Supreme Court held (Order List, Docket No. 11-438):

The petition for rehearing is granted. The order entered June 29, 2012, denying the petition for a writ of certiorari is vacated. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of National Federation of Independent Business v. Sebelius.

Liberty Counsel issued a press release applauding the court's action. Christian Science Monitor also reports on the court's action. (See prior related posting.)