Most of the lawsuits filed to date challenging the constitutionality or implementation of the Patient Protection and Affordable Care Act have come from the law’s opponents. Yet as the federal government implements various provisions of the law, groups that backed the PPACA’s passage will file suits over the law’s implementation, often in an effort to expand the scope of the law’s coverage. The National Women’s Law Center, for example, has filed complaints against several employers for failing to provide maternity care for the female dependents of covered employees. The NWLC claims failure to provide such coverage violates Section 1557 of the Act. If HHS does not address this concern, litigation is likely to follow.
As I discuss in this paper (and will discuss at tomorrow’s Executive Branch Review conference), the PPACA will spawn litigation for years to come and many aspects of the law’s implementation will be settled in federal court. This is so not only because the law remains controversial. Nor is the raft of litigation solely a function of the law’s great size and scope. The PPACA that was signed into law was not the health care reform bill anyone wanted. The bill health care reform supporters wanted died in conference with the election of Massachusetts Senator Scott Brown in a special election. What landed on the President’s desk was incomplete and unfinished, even after it was revised in reconciliation. As a consequence, not all of the PPACA’s parts fit together, complicating implementation and providing greater opportunities for litigation from those who think the law goes too far, as well as those who think it does not go far enough.