successful, these lawsuits could “blow [the ACA] to smithereens.”
To date, the leading case is Halbig v. Sebelius. The case was filed by the
same counsel, and has one of the same plaintiffs, as NFIB. In January 2014,
the district court rejected the plaintiffs’ arguments.
38 The opinion relies upon established rules of statutory construction that require statutes to be read
as a whole, rather than as phrases in isolation.
39 Placing the disputed seven-word phrase in context, the court found it clear that Congress intended the
subsidy provisions to apply to all Exchanges.
40 The court provided a number of examples to place the phrase in proper context.
41 For instance, Title I
of the ACA, where the contested words are found, is headed “Quality Affordable Care for All Americans.”
42 Further, the court noted that the ACA
requires all Exchanges to report on the extent of premium subsidies.
plaintiffs have appealed the district court’s decision.
44 Given the ACA litigation track record, regardless of how the appellate court resolves Halbig,
the cases underway in other states will almost certainly also proceed to the
appellate level. Unless the political landscape changes, the parties will almost certainly seek Supreme Court review.
B. Taking Aim at Preventive Contraceptive Services
As noted above, the vast majority of Round Two cases challenge a spe-
cific ACA provision that requires most health insurance plans to cover pre-
ventive health services without cost sharing, including colorectal, diabetes,
and cholesterol screening and, with respect to women, preventive care and
screenings in guidelines issued by the Health Resources and Services Ad-
45 Implementing regulations exempt from the contra-
36. See Kaiser Family Found., State Decisions for Creating Health Insurance Marketplaces, 2014, (May 28, 2013), http://kff.org/health-reform/state-indicator/health-insurance-exchanges/ (noting that twenty-seven states have chosen a federally-facilitated Exchange and
seven others have chosen to partnership Exchanges).
37. George F. Will, Four words in the ACA could spell its doom, WASH. POST, Jan. 29,
38. Halbig v. Sebelius, No. 13-623 (PLF), 2014 WL 129023 ( D. D. C. Jan. 15, 2014).
For an analysis of the case, see generally Abbe R. Gluck,
A Legal Victory for Insurance Exchanges, 370 NEW ENG. J. MED. 896 (2014), available at
39. Halbig, 2014 WL 129023.
44. See Brief for Appellants, Halbig v. Sebelius, No. 14-5018 ( D. C. Cir. Jan. 30, 2014),
E. C.F. No. 21.
45. 42 U.S. C. A. § 300gg- 13(a)( 4) (West, WestlawNext through Pub. L. No. 113-93