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Health Reform and the Supreme Court: The ACA Survives the Battle of the Broccoli and Fortifies Itself Against Future Fatal Attack

35 Pages Posted: 9 Jan 2013 Last revised: 10 Apr 2013

Alicia R. Ouellette

Albany Law School

Date Written: January 6, 2013

Abstract

In deciding NFIB v Sebelius, the Supreme Court upheld the ACA, the Obama Administration's most significant piece of social legislation. Resting the decision on the Taxing and Spending Clauses, the Court confounded most pundits and scholars. It also provided proponents and opponents of health reform some insight into how future challenges to the Act will be decided. This article examines the decision closely to determine what role, if any, NFIB is likely to play in future constitutional challenges to the ACA. Specifically, the article argues that NFIB is likely to play a small but critical role if and when the Supreme Court considers the constitutionality of the ACA’s contraception mandate. Despite the expressed willingness of the four members of the Court to strike the entire statute down based on a single constitutional infirmity, at least five judges of the Court have made it vividly clear that even a successful challenge to a single component of the act — including the contraception mandate — will not bring down the ACA. After NFIB, the ACA will survive further assault in the courts.

Suggested Citation

Ouellette, Alicia R., Health Reform and the Supreme Court: The ACA Survives the Battle of the Broccoli and Fortifies Itself Against Future Fatal Attack (January 6, 2013). Albany Law Review, Forthcoming; Albany Law School Research Paper No. 25 for 2012-2013. Available at SSRN: https://ssrn.com/abstract=2197125

Alicia R. Ouellette (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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