High court won't fast-track health suit

The Supreme Court announced Monday that it would not fast-track its review of Virginia Attorney General Ken Cuccinelli's challenge against the new healthcare law. 

All nine justices appear to have signed the decision to deny Cuccinelli's petition to sidestep the appeals process. The decision, which does not contain any explanatory comment or dissent, was largely expected, and returns the case to the 4th Circuit Court of Appeals.

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"The petition for a writ of certiorari before judgment is denied," the order says.

The Supreme Court is still expected to uphold or strike down the healthcare reform law before the 2012 elections despite Monday's decision not to skip the appeals process. 

Cuccinelli (R), who is challenging the law's individual mandate, had petitioned the court to take up the case as soon as possible.

"Given the importance of the issues at stake to the States and to the economy as a whole," Cuccinelli argued in his Feb. 8 motion, "this Court should grant certiorari to resolve a matter of imperative public importance."

In a statement Monday, Cuccinelli said the high court's decision was "disappointing" but "not surprising," given how rare it would have been for the court to expedite the process.

"We asked the United States Supreme Court for expedited review of our lawsuit because Virginia and other states are already spending huge sums to implement their portions of the health care act, businesses are already making decisions about whether to cut or keep employee health plans, and citizens are in limbo until the Supreme Court rules," he said. 

"Asking the court to expedite our lawsuit was about removing this crippling and costly uncertainty as quickly as possible. We were gratified that both Republicans and Democrats in Virginia supported the effort to expedite."

Court watchers say the high court was always unlikely to break with precedent and fast-track the Virginia challenge since doing so would only have sped up a final decision by a few months, given how quickly the lower courts have been handling the case. 

"Even if the Court were to grant Virginia's petition ... the effect would probably be to move up the Court's ultimate decision by only a couple of months," wrote Brad Joondeph on the influential ACA Litigation Blog. "Given the potential costs — especially the potential political costs to the Court — how could that small time savings be worth it?" 

Oral arguments in the Virginia challenge have been scheduled before the U.S. Fourth Circuit Court of Appeals in Richmond, Va., on May 10.

Several other appeals courts are expected to rule in time for the Supreme Court to consider their case, including the Atlanta appeals court that is reviewing the 26-state challenge against the law.

The strongest challenges concern the law's individual mandate, without which key insurance reforms — such as the requirement that insurers cover everyone regardless of pre-existing conditions — would not be sustainable. Two federal judges have ruled the law's individual mandate unconstitutional, while several others have upheld it.

While declaring itself confident that the Supreme Court won't strike down the law, the Obama administration has taken steps to mitigate a negative decision by the Supreme Court. Last December, lawyers with the Justice Department began arguing that most of the law should be allowed to stand if the mandate is struck down.

The Obama administration has argued that appeals courts should have their say — arguments have been scheduled in no fewer than four appeals courts over the next five months — while critics say the differing opinions to date are creating legal uncertainty and should be resolved as quickly as possible by the Supreme Court.

—This story was first posted at 10:41 a.m. and updated at 11:56 a.m.

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