Appeals court to hear legal challenge to health insurance mandate

Legal challenges to President Barack Obama's federal health care law are percolating around the nation, and one of them has a major court date Thursday in Minnesota.

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit will hear arguments in St. Paul on whether to revive a lawsuit brought by two Missouri residents.

Samantha Hill and Lt. Gov. Peter Kinder object to the law's mandate that they buy health insurance starting in 2014. Representatives from about two dozen states including Minnesota support the lawsuit.

The court will decided whether Hill, who is in her early 20s, and Kinder may pursue their challenge. If they do not obtain insurance, they could face a penalty under the law. The case has garnered support from health care law critics nationally and in Minnesota. Twenty-one states have filed advisory briefs supporting the suit's argument that the law is unconstitutional. Nearly two dozen Republican Minnesota state lawmakers have filed similar briefs, including Rep. Glenn Gruenhagen of Glencoe.

"This is a state's rights issue. And let the states, 50 different experiments deal with health care costs and solutions, and then we'll have a better chance of finding out what really works" Gruenhagen said.

But Hill and Kinder's case has a problem. Before the appeals court can even hear their argument on the law, the attorney representing Hill and Kinder must persuade the judges that they even have a right to challenge the law.

University of Minnesota Law Professor Bill McGeveran said people can't go into court to strike down a law simply because they don't like it; they have to suffer some kind of harm as a result of it.

"That's meant to be a limit on judicial power," McGeveran said. "Because without it, courts would be able to issue binding rulings on all kinds of hypothetical situations."

A lower court judge has ruled that Hill and Kinder don't have a legal right to challenge the law because they've failed to demonstrate it would harm them directly.

For one thing, Kinder already has insurance. Hill does not, but she'd only face a penalty if she doesn't get insurance in 2014. The judge pointed out that Hill hasn't declared whether she'll refuse insurance at that point, so it's unclear whether she would face a penalty. The Obama administration's Justice Department, which is defending the case, said the judge was correct to rule the law doesn't harm them directly.

Hill and Kinder's attorney, Thor Hearne disagrees.

"We have a federal law that says you — Samantha Hill and Peter Kinder — must buy an insurance policy that provides these coverages," Hearne said. "And if you don't, for every month that you don't have that policy, we will fine you. And it is clearly a law that applies to them."

Following Thursday's hearing, the Court of Appeals panel has three options: dismiss the case like the lower court did; find Hill and Kinder do have a right to sue, and send the case back to the district judge; or, rule that Hill and Kinder have a right to sue and then argue the constitutionality of the law.

Hearne hopes for the last option. He wants the case to be far enough along in the legal process that the Supreme Court could include it in its own review. Although the High Court has not said it will take up the federal health care law, most legal scholars expect that it will.

Hearne said his case could become the Supreme Court's vehicle for review because it could present the High Court with a less drastic alternative to striking down the law entirely. There are essentially two ways to challenge the health care law — one is to argue there is absolutely no circumstance where the law can be upheld, or as in Hearne's case, that there may be situations where the law is constitutional — just not for people such as Hill and Kinder who object to the government requiring them to obtain insurance.

"This case, we think presents a very attractive opportunity for them to narrowly resolve the issue," Hearne said. "And in that sense, give guidance to congress and allow not some broad invalidation of the law, but a more narrow decision."

So would a narrower case be more attractive to the Supreme Court Justices? Not necessarily, said Harvard Law Prof. Richard Fallon. He said the justices have said they prefer narrower challenges to big, across-the-board decisions.

"But if you look at what the court actually does dealing with statutes that have a big national importance, the court will think that it's better to clear up everything for everybody all at once," Fallon said.

It is possible that the Supreme Court could consolidate all the cases over picking and choosing among those that challenge the law, Fallon said.

The hearing in St. Paul begins at 9 a.m. and a decision isn't expected for several months.

Elizabeth Stawicki prepared this report as part of a collaboration between MPR News, Kaiser Health News, and NPR.