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

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.