Liberty Univ., Inc. v. Geithner

108 A.F.T.R.2d 2011-6177

2011-2 USTC P 50,613

671 F.3d 391

LIBERTY UNIVERSITY, INCORPORATED, a Virginia Nonprofit Corporation; Michele G. Waddell; Joanne V. Merrill, Plaintiffs–Appellants,andMartha A. Neal; David Stein, M.D.; Pausanias Alexander; Mary T. Bendorf; Delegate Kathy Byron; Jeff Helgeson, Plaintiffs,

v.Timothy GEITHNER, Secretary of the Treasury of the United States, in his official capacity; Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, in her official capacity; Hilda L. Solis, Secretary of the United States Department of Labor, in her official capacity; Eric H. Holder, Jr., Attorney General of the United States, in his official capacity, Defendants–Appellees.Mountain States Legal Foundation; Revere America Foundation, Amici Supporting Appellants,American Civil Liberties Union; American Civil Liberties Union of Virginia, Incorporated; American Nurses Association; American Academy of Pediatrics, Incorporated; American Medical Student Association; Center for American Progress, d/b/a Doctors for America; National Hispanic Medical Association; National Physicians Alliance; Harry Reid, Senate Majority Leader; Nancy Pelosi, House Democratic Leader; Dick Durbin, Senator, Assistant Majority Leader; Charles Schumer, Senator, Conference Vice Chair; Patty Murray, Conference Secretary; Max Baucus, Senator, Committee on Finance Chair; Tom Harkin, Senator, Committee on Health, Education, Labor and Pensions Chair; Patrick Leahy, Senator, Committee on the Judiciary Chair; Barbara Mikulski, Senator, HELP Subcommittee on Retirement and Aging Chair; John D. Rockefeller, IV, Senator, Committee on Commerce Chair; Steny Hoyer, Representative, House Democratic Whip; James E. Clyburn, Representative, Democratic Assistant Leader; John B. Larson, Representative, Chair of Democratic Caucus; Xavier Becerra, Representative, Vice Chair of Democratic Caucus; John D. Dingell, Representative, Sponsor of House Health Care Reform Legislation; Henry A. Waxman, Representative, Ranking Member, Committee on Energy and Commerce; Frank Pallone, Jr., Representative, Ranking Member, Commerce Subcommittee on Health; Sander M. Levin, Representative, Ranking Member, Committee on Ways and Means; Fortney Pete Stark, Representative, Ranking Member, Ways and Means Subcommittee on Health; Robert E. Andrews, Representative, Ranking Member, Education and Workforce Subcommittee on Health; Jerrold Nadler, Representative, Ranking Member, Subcommittee on Constitution; George Miller, Representative, Ranking Member, Education and the Workforce Committee; John Conyers, Jr., Representative, Ranking Member, Committee on the Judiciary; Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School; Gillian E. Metzger, Professor of Law, Columbia Law School; Trevor W. Morrison, Professor of Law, Columbia Law School; American Association of People With Disabilities; The Arc of the United States; Breast Cancer Action; Families USA; Friends of Cancer Research; March of Dimes Foundation; Mental Health America; National Breast Cancer Coalition; National Organization for Rare Disorders; National Partnership for Women and Families; National Senior Citizens Law Center; National Women's Health Network; The Ovarian Cancer National Alliance; American Hospital Association; Association of American Medical Colleges; Federation of American Hospitals; National Association of Public Hospitals and Health Systems; Catholic Health Association of the United States; National Association of Children's Hospitals; Christine O. Gregoire, Governor; Dr. David Cutler, Deputy, Otto Eckstein Professor of Applied Economics, Harvard University; Dr. Henry Aaron, Senior Fellow, Economic Studies, Bruce and Virginia MacLaury Chair, The Brookings Institution; Dr. George Akerlof, Koshland Professor of Economics, University of California–Berkeley, 2001 Nobel Laureate; Dr. Stuart Altman, Sol C. Chaikin Professor of National Health Policy, Brandeis University; Dr. Kenneth Arrow, Joan Kenney Professor of Economics and Professor of Operations Research, Stanford University, 1972 Nobel Laureate; Dr. Susan Athey, Professor of Economics, Harvard University, 2007 Recipient of the John Bates Clark Medal for the most influential American economist under age 40; Dr. Linda J. Blumberg, Senior Fellow, The Urban Institute, Health Policy Center; Dr. Leonard E. Burman, Daniel Patrick Moynihan Professor of Public Affairs at the Maxwell School, Syracuse University; Dr. Amitabh Chandra, Professor of Public Policy Kennedy School of Government, Harvard University; Dr. Michael Chernew, Professor, Department of Health Care Policy, Harvard Medical School; Dr. Philip Cook, ITT/Sanford Professor of Public Policy, Professor of Economics, Duke University; Dr. Claudia Goldin, Henry Lee Professor of Economics, Harvard University; Dr. Tal Gross, Department of Health Policy and Management, Mailman School of Public Health, Columbia University; Dr. Jonathan Gruber, Professor of Economics, MIT; Dr. Jack Hadley, Associate Dean for Finance and Planning, Professor and Senior Health Services Researcher, College of Health and Human Services, George Mason University; Dr. Vivian Ho, Baker Institute Chair in Health Economics and Professor of Economics, Rice University; Dr. John F. Holahan, Director, Health Policy Research Center, The Urban Institute; Dr. Jill Horwitz, Professor of Law and Co–Director of the Program in Law & Economics, University of Michigan School of Law; Dr. Lawrence Katz, Elisabeth Allen Professor of Economics, Harvard University; Dr. Frank Levy, Rose Professor of Urban Economics, Department of Urban Studies and Planning, MIT; Dr. Peter Lindert, Distinguished Research Professor of Economics, University of California, Davis; Dr. Eric Maskin, Albert O. Hirschman Professor of Social Science at the Institute for Advanced Study, Princeton University, 2007 Nobel Laureate; Dr. Alan C. Monheit, Professor of Health Economics, School of Public Health, University of Medicine & Dentistry of New Jersey; Dr. Marilyn Moon, Vice President and Director Health Program, American Institutes for Research; Dr. Richard J. Murnane, Thompson Professor of Education and Society, Harvard University; Dr. Len M. Nichols, George Mason University; Dr. Harold Pollack, Helen Ross Professor of Social Service Administration, University of Chicago; Dr. Matthew Rabin, Edward G. and Nancy S. Jordan Professor of Economics, University of California–Berkeley, 2001 Recipient of the John Bates Clark Medal for the most influential American economist under age 40; Dr. James B. Rebitzer, Professor of Economics, Management, and Public Policy, Boston University School of Management; Dr. Michael Reich, Professor of Economics, University of California at Berkeley; Dr. Thomas Rice, Professor, UCLA School of Public Health; Dr. Meredith Rosenthal, Department of Health Policy and Management, Harvard University, Harvard School of Public Health; Dr. Christopher Ruhm, Professor of Public Policy and Economics, Department of Economics, University of Virginia; Dr. Jonathan Skinner, Professor of Economics, Dartmouth College, and Professor of Community and Family Medicine, Dartmouth Medical School; Dr. Katherine Swartz, Professor, Department of Health Policy and Management, Harvard School of Public Health; Dr. Kenneth Warner, Dean of the School of Public Health and Avedis Donabedian Distinguished University Professor of Public Health, University of Michigan; Dr. Paul N. Van De Water, Senior Fellow, Center on Budget and Policy Priorities; Dr. Stephen Zuckerman, Senior Fellow, The Urban Institute; National Women's Law Center; American Association of University Women; American Federation of State, County and Municipal Employees; American Medical Women's Association; Asian & Pacific Islander American Health Forum; Black Women's Health Imperative; Childbirth Connection; Ibis Reproductive Health; Institute of Science and Human Values; Maryland Women's Coalition for Health Care Reform; Mental Health America; National Asian Pacific American Women's Forum; National Association of Social Workers; National Coalition for LGBT Health; National Council of Jewish Women; National Council of Women's Organizations; National Education Association; National Latina Institute for Reproductive Health; Older Women's League; Physicians for Reproductive Choice and Health; Raising Women's Voices; Sargent Shriver National Center on Poverty Law; Southwest Women's Law Center; Wider Opportunities for Women; Women's Law Center of Maryland, Incorporated; Women's Law Project, Amici Supporting Appellees.

No. 10–2347.

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2011.Decided: Sept. 8, 2011.

ARGUED: Mathew D. Staver, Liberty Counsel, Orlando, Florida, for Appellants. Neal Kumar Katyal, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Anita L. Staver, Liberty Counsel, Orlando, Florida; Stephen M. Crampton, Mary E. McAlister, Liberty Counsel, Lynchburg, Virginia, for Appellants. Tony West, Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, Alisa B. Klein, Samantha L. Chaifetz, United States Department of Justice, Washington, D.C.; Timothy J. Heaphy, United States Attorney, Roanoke, Virginia, for Appellees. Joel Spector, Mountain States Legal Foundation, Lakewood, Colorado, for Mountain States Legal Foundation, Amicus Supporting Appellants. Brian S. Koukoutchos, Mandeville, Louisiana; Charles J. Cooper, David H. Thompson, Cooper & Kirk, PLLC, Washington, D.C., for Revere America Foundation, Amicus Supporting Appellants. Rebecca Glenberg, American Civil Liberties Union of Virginia, Richmond, Virginia; Daniel Mach, Heather L. Weaver, American Civil Liberties Union, Washington, D.C.; Andrew D. Beck, Brigitte Amiri, American Civil Liberties Union, New York, New York, for American Civil Liberties Union and American Civil Liberties...