Following the decision of the U.S. Supreme Court on the Constitutionality of the Affordable Care Act, there is more to come. Challenges to a regulation that has not taken effect and may never take effect, are already with us.
One of those challenges was dismissed in Nebraska ex rel. Bruning v. United States Dep't of Health & Human Serv's, 2012 WL 2913402 (D. Neb. July 17, 2012), Download Nebraska ex rel. Bruning v. United States Dept of Health & Human Servs (D. Neb. July 17, 2012) PUBLIC ACCESS, AND HIGHLIGHTED. The many plaintiffs who filed this among many other lawsuits across the country challenged a prospective regulation that would have included contraceptive services among the evidence-based "coverage of preventive health services" required to be included in Group Plans subject to the Affordable Care Act. HHS issued public notices that the regulation will not take effect at the earliest until 2013, and that before then, the regulation may be amended, again, to accommodate further objections.
The many plaintiffs in this case were two individuals who claimed to be employees of a religious employer, i.e., of a Catholic Diocese; three organizations which alleged that they are Catholic organizations and therefore "religious employers," and seven States including some far from Nebraska where this case was filed, such as Florida, South Carolina, and Texas.
The problem with all their claims is that the plaintiffs' complaint showed on its face that they each and all lacked standing. And more. The individual and organizational plaintiffs which claimed to be Catholic appeared from their complaint to be absolutely, totally exempt from the regulation.
The District Judge granted the Defendants' Motion to Dismiss against the individual plaintiffs, the organizational plaintiffs, and finally against the State plaintiffs as well, because they each and all failed to allege facts tending to establish that they presented an actual case or controversy arising from an injury in fact, not merely from speculation, "guesses" or conjecture. Bruning v. United States Dep't of Health & Human Serv's, 2012 WL 2913402 *11, *12, *13-*15, *16, *24 (D. Neb. July 17, 2012).
Noting that the question of "ripeness" was now moot in light of these rulings on standing, the District Judge nonetheless offered guidance to the parties that their present claims are not ripe in any case:
None of the plaintiffs have established that Article III's standing requirements have been met. Therefore, there is no case or controversy before me, and the remaining issues raised by the defendants in support of their motion to dismiss are moot. Nevertheless, it merits mention that even if the plaintiffs were able to establish standing to sue, their claims are not ripe.
Bruning v. United States Dep't of Health & Human Serv's, 2012 WL 2913402 *20 (D. Neb. July 17, 2012).
As to the State plaintiffs in particular, they too failed to allege facts tending to establish an injury in fact. "Instead, the State plaintiffs' theory of standing is based on layers of speculation." Bruning v. United States Dep't of Health & Human Serv's, 2012 WL 2913402 *16 (D. Neb. July 17, 2012). At a time of great economic hardship, you have got to wonder why States as far away from where this case was filed as Florida, South Carolina, and Texas are, journeyed so far at such cost to their Taxpayers to waste money making arguments that any good lawyer would have predicted would almost certainly fail. As they most certainly did.
P.S. Attacking the District Judge who wrote this opinion would probably not be wise. Among other things, he is a veteran of World War II, he was appointed by President Richard Nixon, and he has received more awards throughout his long legal and judicial career than Carter has pills, as they say.
Dennis Wall is Co-Chair of the Health, Life and Disability Insurance Subcommittee of the American Bar Association's Insurance Coverage Litigation Committe. He will be a co-presenter of a webinar, "The U.S. Supreme Court Decision on Constitutionality of the Affordable Care Act," for West Legal Education Center. The webinar will be broadcast live today beginning at Noon E.T. from the West Legal Ed Center web site, and will thereafter be available 24/7, registration for any of which is available through West Legal Ed Center for a charge.
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