The move could open the door for the health law to be back in front of the Court late next year. SCOTUS to appeals: Hear Liberty suit

The Supreme Court on Monday ordered the 4th Circuit Court of Appeals to examine the constitutionality of the health care reform law’s employer requirements and mandatory coverage of contraceptives without a co-pay.

The move could open the door for President Barack Obama’s health law to be back in front of the Supreme Court late next year. But legal experts say there’s no guarantee that the justices would actually take the case — or that they’d strike down those pieces of the law if they did.


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The Supreme Court responded to a request from Liberty University, one of the groups that sued over the health care law’s individual mandate in 2010. When the court ruled in June that the mandate was constitutional, it dismissed Liberty’s entire lawsuit.

Over the summer, the school asked the Supreme Court to reopen its arguments against the employer mandate and the contraceptive coverage mandate, which it said were not addressed by the court’s ruling this summer. The court on Monday agreed to the request and told the 4th Circuit to hear arguments on the two pieces.

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The 4th Circuit, which traditionally moves quickly, could hear oral arguments in the case next spring.

“This is a huge decision by the court. It breathes new life into our challenge once again,” Mat Staver, founder and chairman of Liberty Counsel, which represents Liberty University, told POLITICO.

Staver said that even if the 4th Circuit were to throw the case out, Liberty’s ultimate goal is to take the case to the Supreme Court.

The 4th Circuit is just “a destination along the way back to the U.S. Supreme Court,” he said. “Nobody thinks it’s going to be the last decision on this case.”

Liberty University argues that the law’s employer coverage provisions — which will require businesses with more than 50 full-time employees to provide health insurance for them or face fines — are unconstitutional because Congress overstepped its power by setting those rules.

( See also: POLITICO's full coverage of health care reform)

It also says the individual and employer mandates violate the Constitution’s right to a free exercise of religion. The employer mandate is unconstitutional because of the contraception coverage requirement, Liberty argues, claiming that the individual mandate would require individuals to pay for coverage of abortions.

The Justice Department declined to comment on the Supreme Court order Monday, but it told the court last month that it wouldn’t object to the 4th Circuit taking up the case.

In that brief, Solicitor General Donald Verrilli wrote that Liberty University’s arguments “lack merit” but that the Obama administration wouldn’t oppose a hearing because the issues weren’t fully aired the first time around.

Some legal experts are skeptical that Liberty would get anywhere with its arguments against the employer mandate if the case does get to the Supreme Court.

“I think it’s going to be very, very difficult for the challengers to the employer mandate to navigate around a precedent that’s already been established” in the Supreme Court’s ruling upholding the individual mandate, said Catherine Stetson, a partner at the D.C. law firm Hogan Lovells.

The arguments against the contraception coverage mandate could be a different story, but only if this is the case that actually gets to the Supreme Court.

Kevin Walsh, a law professor at the University of Richmond, said that there are so many cases against the employer contraceptive coverage requirement right now that it’s likely that one could rise to the Supreme Court level. But at this point, he said, it’s hard to say if it would be Liberty’s.

“This case is one of many possible vehicles for [the contraceptive coverage requirement challengers] to get in front of the Supreme Court,” Walsh said. “There’s a bunch of different paths. I don’t think we know enough right now to say how it will go.”

Liberty is likely to face a skeptical audience in the 4th Circuit. It’s considered one of the most liberal appeals courts in the country, and when a panel of three judges — all appointed by Democratic presidents — punted last year on a ruling on Liberty’s challenge to the individual mandate, two of the three judges hinted that they might have sided with the Obama administration if they had ruled on the merits.

The panel never got that far because it ruled that the Anti-Injunction Act — a tax law that prevents legal challenges to a tax penalty until it has been paid — meant that the individual mandate couldn’t be challenged yet. The Supreme Court dismissed that view when it upheld the mandate.

When the 4th Circuit has reheard cases in the past, the same panel of judges has taken up the case again. But it’s unclear whether that would happen in this case.

If the 4th Circuit does rule against Liberty, it would give the university an opportunity to take its arguments to the Supreme Court — and try to put the law through yet another legal test.

Carl Tobias, a law professor at the University of Richmond, said he doubted that the judges will agree with the arguments now. But if Liberty’s legal challenge were to make it to the Supreme Court, and the justices sided with Liberty, Tobias said the ruling could damage the law even though most of its central provisions have been upheld.

“I think the employer mandate is important because I think there would be many employers who would not be subject to the act, and that’s a pretty critical provision of the act,” Tobias said. By contrast, he said, the loss of the contraceptive coverage requirement would be less damaging. It’s “important to many people,” he said, but it doesn’t actually affect most people’s coverage — it’s not a “linchpin of the act.”

Staver, the Liberty Counsel attorney, said that even though the Supreme Court upheld the individual mandate this June, he’s still confident that Liberty’s arguments can do serious damage to the ACA. If Liberty prevails on its free exercise claim, he said, “though it may not completely undermine the workability of the law, it would disable the law.”

Liberty University’s lawyers have said that if they’re successful, the Supreme Court could hear arguments in the case in late 2013.

But Timothy Jost, a law professor at Washington and Lee University and a supporter of the Affordable Care Act, believes the 4th Circuit will rule against Liberty — especially if the same panel of judges hears the case again — and the Supreme Court won’t take up the case. Jost said employers are engaged in commerce, which Congress has clear authority to regulate through the employer mandate.

“I don’t see where they’re going to get two votes on the employer thing,” he said. “[Their argument] is so far from established law that the 4th Circuit would basically have to go way out on a limb to reverse that one.”

Jason Millman contributed to this report.