But one aspect amid the increases has not changed -– there has been no federally-mandated minimal level of oversight for facilities run by private prisons.

There are three main issues that worry critics about the lack of oversight in privatized facilities: the standards of confinement, the cost oversight and the ability to get information on either of these points from privately-run detention facilities.

“I think that prisons are closed institutions in general as they are outside the public view … and most citizens have very little understanding of what goes on behind the closed doors,” said Michele Deitch, a senior lecturer at the University of Texas School of Law. “But that changes dramatically when looking at private prisons.

“They are not subject to the same requirements about open records, the sharing of public information,” Deitch continued, “and because they have a contract with the government, not directly with the people, there is a layer of bureaucracy and privacy that is even deeper.”

This growth has been led by a handful of companies, including the two largest private prison companies, Corrections Corporation of America (CCA), which partners with all three federal corrections agencies, according to its website, and “almost half of all states and several municipalities;” and GEO Group, which runs prisons outsourced by federal, state and local prison bureaus as well as immigration facilities around the country.

CCA houses 75,000 inmates at more than 60 facilities in 19 states, and GEO Group follows closely behind with more than 60 facilities in more than 15 states, as well as a prison health-care arm.

According to the U.S. Department of Justice (PDF), the growth of the inmate population in private prisons is 5 percent a year. This does not include jails or immigration detention facilities. In the latter, private companies control nearly half of all detention beds.

Private prison oversight so far

Historically, federal courts have stepped in to oversee particularly egregious examples of prison abuse, but because no federally-mandated minimal level of oversight exists, how private contractors are watched depends on the locality doing the contracting.

“The issue of transparency is really big,” said Mel Wilson, assistant director of Officer Workforce Studies at the National Association of Social Workers. “If you look closely at the criminal justice system, each state has a lot of latitude in structuring what level of oversight it has.”

At the federal level, the Office of Federal Detention Trustee (OFDT) was created in 2000 to provide oversight of federal prisons, but the creation of the Department of Homeland Security in 2003 — and decreased focus on the detention crisis — has left the OFDT to function primarily as a Department of Justice agency that contracts out prisons with private companies, according to a 2010 report from the Center for International Policy.

Immigrations and Customs Enforcement (ICE) also established an Office of Detention Oversight in 2009 to look over the then-32,000 detention beds in 350 facilities. Most of these were not run by ICE employees, the ICE fact sheet noted, but were “operated by county authorities or detention centers operated by private contractors.”

Both CCA and GEO Group, the biggest players in the private-corrections-facility game, lobby directly to some of these agencies. In 2011, CCA spent $810,000 on lobbying agencies including the U.S. Marshals Service, which awards private-prison contracts, and the Bureau of Prisons. GEO Group spent $160,000 lobbying in 2011 -– it expanded its agency targets to ICE, the Department of Homeland Security (DHS) and the Department of Justice, according to Open Secrets.

Recently, GEO Group lobbied on a DHS budget bill, in particular on the issue report related to alternatives to detention for immigrants. CCA also lobbied on the bill, focusing on three issue reports about budgeting for federal agencies overseeing detention. The filings do not say the position of the companies.

On the local level, 27 states have bodies with mandatory inspection duties, eight states have a discretionary monitoring authority, three have a statewide voluntary inspection body and five states have a local jail inspection body, according to a study (PDF) in Pace Law Review by Deitch.

Seventeen states — Arizona, Connecticut, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, Rhode Island, South Dakota, Vermont, West Virginia, Washington, Wyoming — have no oversight bodies at all.

The states with the two fastest-growing prison populations (PDF) -– West Virginia and Indiana -– both have little or no regularized oversight, and no independent monitoring agencies.

In Indiana, where the prison population increased 5.2 percent between 2008 and 2010, according to the Pew Center (PDF), an ombudsman with the state government is charged with investigating any prison-related grievances submitted voluntarily.

West Virginia’s facilities are overseen by the West Virginia Regional Jail and Correctional Authority, though its oversight is not enforced through regular inspections and the state has “no formal external prison or jail oversight mechanisms.”

This can be contrasted to what Deitch calls one of the best prison oversight systems –- Ohio, which provides external oversight of its prisons through the Correctional Institution Inspection Committee, which was created by the state Legislature for independent oversight in 1977.

Private prison exceptionalism

But with private prisons, critics say setting up effective oversight mechanisms is only part of the battle.

“There is just example after example of the failure of oversight,” said David Shapiro, a staff attorney at the National Prison Project of the American Civil Liberties Union, which has monitored prison issues since 1972.

The Corrections Corporation of America notes on its website that over 93 percent of it’s 60 facilities have passed an audit done every three years by the American Correctional Association (ACA), another private group that “offers training, support and operational standards to correctional facilities and officers.”

But critics question the reliability of the audit. A three-year accreditation (PDF) from the ACA costs $3,000 per day and $1,500 dollars for the each auditor on the team. Ken Kopczynski, with the non-profit Private Corrections Working Group, writes that this is a sign of pay-for-play.

Kopczynski also notes that “at least two CCA employees serve as ACA auditors – CCA warden Todd Thomas and company vice president Dennis Bradby,” further breaking down the ACA’s authority as an independent auditor.

Meanwhile, CCA has dealt with lawsuits around the country. Hawaii took more than 200 prisoners back from CCA prisons outside the state after they alleged they had been abused by guards; 234 inmates from Colorado sued CCA for injuries suffered from guards after a riot they didn’t participate in; and in Minnesota the company was a defendant in eight cases between 1997-2006, according to court records obtained by staff at The Minnesota Independent.

Future steps

Deitch stresses the importance of independent oversight for objective observation of a facility. Budgets cuts could make localities “less likely to be able to conduct appropriate oversight,” which puts both prisoners and staff in danger.

Shapiro, with the ACLU, also worries about the revolving door. In New Mexico, the corrections secretary Joe Williams didn’t penalize CCA and GEO Group for breaking their contractual obligations by running under-staffed prisons and then pocketing extra profits. As The New Mexico Independent reported, before becoming corrections secretary, Williams was hired by GEO Group as a warden for the Lea County Correctional Facility.

The American Bar Association (ABA) passed a resolution in 2008 calling for independent correctional oversight in every jurisdiction that has now been adopted as part of ABA policy. Deitch co-chairs the ABA’s committee on correctional oversight.

But Shapiro says no amount of oversight can ever make as opaque an institution as a private prison function transparently. The ACLU has called for the “elimination of private prisons” in its policy priorities as far back as 2001.

“The best approach to private prisons is just say no,” said Shapiro “No amount of oversight can really account for the problems with the profit motive and the problematic incentives that it creates.”

(Jon Collins contributed to reporting this story)

Some of those species up for consideration are found in decreasing numbers in Colorado, where WildEarth Guardians sued the U.S. Fish and Wildlife Service (USFWS) over its failure to consider in a timely manner the group’s petition to list the Arapahoe snowfly.

Arapahoe snowfly.

Found only in the Cache la Poudre River drainage in northern Colorado, the fly is seen as an indicator species for the overall health of the river ecosystem as it increasingly succumbs to pressures from agricultural, recreational and industrial demands.

WildEarth had a total of 12 lawsuits pending, and the settlement deal struck last week resolves those suits and also schedules findings on petitions to list more than 600 additional species. WildEarth’s lawsuits will be dismissed, and the group has agreed not to sue over missed listing deadlines for the next six years.

“We and the government agree that it is long past time to get the endangered species listing program back on track,”, WildEarth Guardians Executive Director John Horning said in a release. “This is an important step toward protecting our rich biodiversity and stemming the extinction crisis in our country.”

Environmental groups hope this settlement fixes the “warranted but not listed” loophole that allows the federal government to keep species off the list for decades, meaning they don’t then receive the full protection of the law in the face of increasing development.

The U.S. Fish and Wildlife Service recently signaled a shift in policy away from merely maintaining habitat for endangered species to actually taking steps to increase the amount of habitat.

However, environmental litigation itself would be somewhat of an endangered species under a bill floated by Republican Wyoming lawmakers Cynthia Lummis and John Barrasso called the Government Litigation Savings Act.

H.R. 1996, co-sponsored by Republican Colorado Reps. Mike Coffman, Doug Lamborn and Scott Tipton would place severe limitations on the Equal Access to Justice Act, which former President Ronald Reagan signed into law in the 1980s. Environmental groups have lined up to defeat the bill.

Jennie Linn McCormack, a mother of three from Pocatello, Idaho, was initially arrested and prosecuted in December 2010 for inducing her own abortion, when she was between 20 and 21 weeks of gestation, with the abortion pill RU 486, which she bought on the Internet, reports Reuters. She was charged under a 1972 state law that classifies ending one’s own pregnancy as a felony, before a judge threw out her case for lack of evidence. Now McCormack is suing the attorney that prosecuted her, Mark Hiedeman.

Idaho’s new late-term abortion law — signed and enacted immediately by Republican Gov. Butch Otter in April — makes it a felony to perform an abortion after 20 weeks, except in a situation where the mother’s life is in danger. Though this law was not in effect when McCormack took the abortion drugs, her suit includes both the 20-week abortion ban and the 1972 law; in the suit she claims she induced her own abortion because of the general lack of access to abortions for women in her state. According to the Associated Press, McCormack was single and unemployed when police arrested her after discovering the dead fetus in a box at her home.

McCormack’s case -– depending on how far up the court system it goes –- could impact the five other states that have banned abortion after 20 weeks, beginning with Nebraska in 2010, followed by Kansas, Indiana, Oklahoma and Alabama.

The district and lawyers for the students met early this week in hopes that a settlement could be reached in the lawsuit. Both sides have declined to comment on the talks other than to say they were productive. The dialogue ended Tuesday without resolution, and no more discussions have been scheduled.

On Monday, the Parents Action League, a group of conservative Christian parents in the district, appealed to school officials to maintain its “neutrality policy,” a directive enacted two years ago that limits discussions of LGBT issues in the district and one that the lawsuit alleges creates a hostile environment for LGBT students.

“I’m here on behalf of the Parents Action League to support the sexual orientation policy,” said Lori Thompson at Monday’s school board meeting. “It is an excellent policy. It honors the rights of all parents and guardians. We feel that teachers should not be injecting their personal views in the classroom on any subject.”

Thompson said the group had gathered 1,052 signatures.

“We, the Parents Action League, along with every person who put their name on the petition, are asking the board to please keep the sexual orientation policy in place and keep controversial social issues at home where they belong,” Thompson said.

After Thompson addressed the board, Kevin Peterson of Brooklyn Center also urged that the policy be maintained — and then revealed he was once gay.

“I used to be gay, back in the ’80s and ’90s,” he said. “I used to be a member of Act Up and marched in a few gay pride parades.”

“I was trying to get our agenda into high schools and even elementary schools,” he added.

Peterson claimed that most people who are LGBT don’t want to be.

“Most people with same-sex attraction don’t like this about themselves and don’t want to act on those attractions,” he said. “In other words most homosexuals are not gay, and we gay activists knew that it was very important to reach those sexually confused people. We wanted the young guys top know that they shouldn’t be confused about those attractions that they should understand that they can’t possibly change and gay is good.”

He said it was all about recruitment.

“What I was doing in effect was recruiting them to be gay and get into the lifestyle. That’s what happened to me when i got into college.”

But not all testifiers at Monday night’s meeting were in support of the policy. Parent Melissa Thompson said many forms of diversity are discussed in Anoka-Hennepin schools and questioned why sexual orientation is being singled out.

“You don’t need to take on a belief to respect the person who has it,” she said. “We openly discuss and recognize all kinds of diversity from cultural to religious to economic, so I ask you why we refuse to acknowledge anything gay in our schools?”

She added, “Nobody is asking that homosexuality be taught, quite simply because it can’t be. But just because someone refuses to believe that people are born gay doesn’t change that fact for a gay person. The idea that if we deny something that offends us it will disappear is childish, hurtful and hardly neutral.”

Thompson was also critical of the activities of the Parents Action League.

“I recently received an email directly from Lori Thompson of the Parents Action League soliciting my signature. She received my email address from the Minnesota Family Council, and I have a copy of the email for you all to see that,” she said, holding up a copy of the email. “It was directly solicited from this political group that has made a career out of disrespecting children in our district. I want to show the connection.”

PAL’s spokesperson, at least in the past, has been Barb Anderson who works for the Minnesota Family Council. Anderson recently appeared on the radio program of Americans for the Truth About Homosexuality, an organization the Southern Poverty Law Center lists as a hate group. In that interview, Anderson said she’s tried to get “ex-gay” therapy into the district’s schools and blamed LGBT groups for the bullying of LGBT students.

Thompson raised another concern about PAL to the school board; she says the group has been soliciting signatures from students.

“The other concern I have is the fact that they solicit signatures from children as young as 13,” she said. “Now, they want to paint us as being inappropriate in regard to children, but to put children in that position is beyond unacceptable.”

A Hennepin County district court judge dismissed a suit by the couples — Duane Gajewski and Doug Benson, Lindzi Campbell and Jesse Dykhuis, John Rittman and Tom Trisko–  in March. The judge said that until the Minnesota Supreme Court overturns Baker v. Nelson, a 1971 case that said same-sex couples cannot marry in Minnesota, “same-sex marriage will not exist in this state.”

So the couples are taking their case to the Minnesota Court of Appeals with hopes that they can get it heard before the Minnesota Supreme Court.

“The appellants challenge MN DOMA and the obstacle it poses to the appellants’ enjoyment of 515 separate laws that confer tangible benefits upon married couples and their families, and relieve the injuries the appellants face in taxation, inheritance, powers of attomey, health care, and child rearing, amongst other matters,” the court filings for the couples read.

Attorneys for the couples argue that the 1971 Baker decision doesn’t apply, arguing that the current case is about recognizing marriages performed in other states.

“Resting on its interpretation of the Book of Genesis for its holding, the Baker Court turns aside an early bid by a same-sex couple seeking to marry under Minnesota law,” court filings said. “Notwithstanding the state’s protests to the contrary, and notwithstanding the district court’s reluctance to rule contrary to Baker in spite of its stated misgivings, Baker does not determine the outcome of this case. In addressing the claims of same-sex couples lawfully married in other jurisdictions, this court may grant the appellants relief from MN DOMA, regardless of Baker.”

In a bit of a twist, the Minnesota Family Council filed a brief saying that Baker is a “decisive” case. That differs from MFC’s public statements that judges are likely to rule in favor of same-sex marriage and that a constitutional amendment barring it is necessary.

“[T[he Minnesota Supreme Court’s Baker decision is undoubtedly binding and controlling here,” MFC’s attorneys wrote. Those attorneys are from the Alliance Defense Fund, a group founded by prominent religious right groups including James Dobson’s Focus on the Family and the American Family Association, an organization that has been labeled a hate group by the Southern Poverty Law Center.

“The State Supreme Court in Baker squarely rejected the argument ‘that the right to marry without regard to the sex of the parties is a fundamental right of all persons’ under the federal constitution. That same conclusion… applies under the state constitution,” they wrote.

The Family Council brief also argued that lesbians, gays and bisexuals do not constitute a “suspect class” because they do not lack political powerlessness — “such individuals wield tremendous power” — and it contends that sexual orientation can change.

Finally, the group argues that same-sex couples should not be granted marriage rights because they cannot reproduce.

“Sexual relationships between opposite-sex couples have a normative procreative capacity, only those relationships provide children with their mother and father. Same-sex couples, in contrast, can neither procreate without intervention by a person of the opposite sex nor give children a home with both a mother and a father,” the brief said.

The Minnesota Atheists also filed a brief in the case, arguing that laws barring rights for same-sex couples are inherently religious in nature and should be overturned.

“These clerics and their followers are, of course, entitled to their beliefs. But, they should not be allowed to impose their theocratic views in the secular laws of this state,” the brief reads. “There is no compelling secular reason to deny civil marriage to same-sex couples; there are only religious justifications.”

The Minnesota Atheists point to hearings in May on a proposed constitutional amendment that would bar same-sex marriage where every testifier had a strong religious background and testified based on religious belief.

“This religious viewpoint, running deeply through DOMA, clashes with secular science and medicine. For example, the American Psychiatric Association “supports the legal recognition of same-sex unions and their associated legal rights, benefits, and susceptibilities, and opposes restrictions on those rights, benefits and responsibilities,” the brief said.

The group also took issue with the Minnesota Family Council’s assertion that marriage should remain between opposite-sex couples because same-sex couples cannot reproduce.

“This argument makes no sense. The state does not impose any fertility requirements on couples getting married, imposes no test whether the parties can conceive, and does not disallow marriages for women who are beyond child bearing age or men who are impotent, sterile, or have had a vasectomy.”

The timeline for the case is up to the court and could well bleed into the debate over the constitutional amendment as it gears up next year leading to the November elections.

Doug Benson, one of plaintiffs in the case, said, “Even if our opponents’ anti-gay marriage amendment is defeated by the voters in November 2012, our law suit will still be needed to get rid of the current Minnesota DOMA statute from 1997. We will continue to carefully move our case forward in the courts, using every argument and resource at our disposal to overturn the statutory ban on same-sex marriage.”

But the lawyers for the Minnesota Family Council warn that if the case is successful, gay marriage will be forced on everyone.

“No provision of the Minnesota Constitution gives individuals the right to redefine marriage and force that definition on everyone else,” the ADF’s Jim Campbell said in a statement.

The suit alleges the new law violates state laws on public spending and religious groups. Ministries and their affiliate academies traditionally benefit most from state codes that award public dollars to students seeking to attend private schools.

Fourteen named plaintiffs are taking part in the suit, including two representatives of religious groups. Typically a key source of funding and support for private school voucher legislation, their appearance is likely to surprise many in the school voucher community..

The plaintiffs’ brief indicates nearly all of the institutions benefiting from the Choice Scholarship Program would be religious groups, estimated at roughly 90 percent. Of the 353 private schools that are accredited and could participate in the voucher program, 185 are Catholic. With the exception of three Muslim and Jewish academies, the remaining religious institutions are of a Christian denomination.

Republican Governor Mitch Daniels and Dr. Tony Bennett, Indiana Superintendent of Public Instruction, are the named defendants. All the listed plaintiffs are residents and taxpayers of Indiana. Many out-of-state groups, like D.C.-based American Federation For Children, spent money advocating for CSP’s passage.

Mark Shoup, spokesperson for the Indiana State Teachers Association, one of the plaintiffs, said to The American Independent in a brief interview, “The Indiana constitution is a very progressive document. It protects public dollars from going to religious schools.”

He also said the new law would drain $65 million from public school state coffers, a significant amount on top of the $600 million in education budget cuts supported by Gov. Daniels that were passed in the last two years.

By its third year, 60 percent of Indiana students will be eligible to participate in CSP. That estimate is based on the income restrictions established by the law, stipulating only students of families earning below $62,000 can participate.

Other complaints include the provision state education officials cannot regulate the curriculum, staffing or teaching requirements of schools accepting CSP students.

The legal battle surrounding a 2009 abortion law is still going strong in Arizona, after the state’s Planned Parenthood affiliate filed a lawsuit in September of that year challenging the constitutionality of the the Arizona Abortion Consent Act (PDF) after it was signed into law two months earlier. At the time, the Arizona Superior Court for Maricopa County granted Planned Parenthood’s preliminary injunction and effectively stalled the law. In March 2010, the Alliance Defense Fund (ADF), a legal alliance of Christian attorneys, appealed the judge’s order in conjunction with the Center for Arizona Policy (which helped draft the bill), the Bioethics Defense Fund and the Life Legal Defense Foundation.

On Tuesday afternoon, counsel for the Alliance Defense Fund is arguing at the Arizona Court of Appeals in Phoenix on behalf of the bill’s sponsors, Sens. Linda Gray and Nancy Barto (Barto was an Arizona House representative when she sponsored the bill), as well as several organizations (PDF), including the American Association of Pro-Life Obstetricians and Gynecologists, the Arizona Catholic Conference and the Crisis Pregnancy Centers of Greater Phoenix.

What the law as signed did:

• Prohibit non-physicians from performing surgical abortions.
• Require women to be told abortion alternatives, “long-term medical risks” associated with abortion, the probable gestational age of the unborn child. All of this information must be consumed at least 24 hours before the scheduled abortion, during which time the woman must wait before receiving the abortion.
• Allow for health care workers to refuse to perform or facilitate abortion procedures.
• Require minors seeking abortions to first produce notarized parental consent.

Testifying on Tuesday is ADF senior counsel Steven H. Aden.

“The protection of women should not be on hold while the nation’s largest abortion purveyor ties things up in court,” Aden said in a press release sent out Monday.

During Arizona’s recently-concluded legislative session, Gov. Jan Brewer signed 16 Center for Arizona Policy-supported bills, all to go into effect July 20. On Monday, the conservative policy group sent out an email to supporters asking them to pray that these laws go unchallenged in court. The letter also asked supporters to pray for a favorable outcome of Tuesday’s hearing, specifically that “the Lord grants the three-judge panel wisdom to understand why this law is so critical for our state.”

“The ruling means that Hoosiers who rely on federal funding have lost access to their crucial and lifesaving preventive health care at Planned Parenthood of Indiana,” said PPIN President and CEO Betty Cockrum in a statement following the court ruling in the U.S. District Court in Indianapolis.

PPIN has also said it would have to stop providing disease-intervention services to hundreds of women and men in 22 counties. Those services are currently provided through staff based in Lafayette and Muncie health centers.

Though Gov. Daniels has said that Indiana’s Family and Social Services Administration would be in charge of notifying Medicaid recipients of nearby options, FSSA spokesperson Marcus Barlow told The American Independent the onus is up to Planned Parenthood to notify Hoosiers that their services will no longer be covered by Medicaid.

But the organization has not yet done so, PPIN spokesperson Kate Shepherd told TAI. Through Saturday, Planned Parenthood will be accepting its Medicaid recipients “in most cases,” she said. Some “long-term forms of birth control” will not be covered. In the meantime, she said the organization is scrutinizing its Women’s Health Fund, which is funded by donors for preventative care, to see how many patients PPIN can continue cover. As to whether any clinics might have to close, Shepherd said is “too early to say.”

The FSSA did update its website following Tuesday’s bill passage, notifying Medicaid recipients that their benefit plans have not changed; the only thing that has changed is where they can receive covered reproductive services such as birth control and pelvic exams.

Barlow said the agency does not have a comprehensive list of Medicaid providers throughout the state that also provide reproductive health services such as those provided at the 28 Planned Parenthood clinics. Medicaid recipients are to use the Indiana Medicaid for Members online provider-search service. He said family planning services only make up 7 percent of total services offered by Medicaid providers in the state and the funding stripped by Daniels’ bill only represents 0.02 percent total Medicaid funding for the state.

Barlow said he was confident that all 92 counties in Indiana have clinics offering the services defunded at PPIN such a contraception, pap smears and sexually transmitted disease prevention.

But Cockrum has challenged that claim, saying that rural areas such as Elkhart County in northeastern part of the state — an area famous for its large recreational vehicle industry and high unemployment rate, which in 2009 reached 18 percent and earned a visit from President Obama — do not have comparable service.

After collecting all the Medicaid providers in the state, the governor reported that in Elkhart County there are 37 providers. A receptionist at the Elkhart County Health Department could not readily refer TAI to any Medicaid providers in the county that offer services such as hormonal birth control and sexually transmitted disease testing.

River Oaks OB/GYN in Elkhart, Ind., provides basic gynecological services and sees patients on Medicaid but only sees pregnant women on the Managed Health Services plan, under the Healthy Indiana Plan. Fairhaven Obstetrics and Gynecology in Goshen, Ind. — which claims to provide “quality obstetric and gynecologic care guided by Christian principles” — and Goshen OB/GYN offer comprehensive contraceptive services to Medicaid recipients, as well as STD testing, but only for female patients. Many family planning clinics in the county listed in the Yellow Pages — such as the Women’s Care Center, LDS Family Services, Natural Family Planning — offer free pregnancy tests and classes but no contraception or STD prevention services.

Shepherd said Planned Parenthood is still hopeful its case will win in court. Judge Tanya Walton Pratt denied the request for a temporary restraining order Wednesday afternoon, but Shepherd said she told the plaintiffs not to read into her feelings on the merits of the case. There will be a hearing in Indianapolis on June 6.

Despite initial conjectures that this new law, passed as House Bill 1210, would take away all public family-planning funding, the state has conceded that some family planning funds would not be affected. At issue now is $1.4 million in mostly Medicaid funding, reports the San Francisco Chronicle, which also notes that the state itself is now at risk of losing $4 million annually in federal family planning grants.

Aside from the defunding measure, HB 1210 also bans abortion after 20 weeks unless the mother’s life is at risk.

PPIN, being represented by the American Civil Liberties Union, is challenging the “fetal pain” and other provisions in addition to the funding piece of the legislation.

On the day Obama signed the health care bill into law — March 23, 2010 — Liberty University, represented by its partner institution Liberty Counsel, filed a lawsuit (PDF) against Timothy Geithner, secretary of the U.S. Treasury Department; Kathleen Sebelius, Health and Human Services secretary; Hilda L. Solis; Labor Department secretary; and U.S. Attorney General Eric H. Holder, Jr., for allegedly violating constitutional rights by implementing individual and employer mandates. After failing in district court, Liberty University has appealed (PDF) the case.

Listen to Mathew D. Staver, founder of Liberty Counsel and dean of Liberty University School of Law, argue before a three-judge panel.

Oral arguments for Liberty University, Inc. v. Timothy Geithner:

Also on March 23, 2010, Virginia Attorney General Kenneth T. Cuccinelli sued Sebelius, challenging the health care act’s individual mandate. On Tuesday, Cuccinelli also appealed to the panel. Both Cuccinelli and Liberty hope their cases will reach the U.S. Supreme Court by year’s end.

Listen to oral arguments for Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Kathleen Sebelius:

“Today we took Step Two in a three-step process,” said Cuccinelli in a news conference following the arguments. “As Judge Motz noted, the legal questions raised today are questions that will be answered in another court in another time.”

Cuccinelli offered an overview of the Commonwealth of Virginia’s case during the news conference:

Virginia has argued that the mandate that every person must buy government-approved health insurance violates the Constitution. Using the Constitution’s Commerce Clause to force people to buy a product goes beyond Congress’s power. This is why I have said all along that this is about liberty, not health care. The insurance mandate penalizes people for not engaging in commerce. In other words, you can get fined for doing nothing.

Virginia has also argued that the penalty the government wants to charge if you do not buy health insurance is not a tax. The government cannot start calling the penalty a tax to try to make it legal under Congress’s taxing authority. Congress and the president passed it as a penalty, not a tax; it works as a penalty, not as a tax.

[...]

If we cross this constitutional line with health care now – where the government can force us to buy a private product and say it is for our own good – then we will have given the government the power to force us to buy other private products, such as cars, gym memberships, or even asparagus. The government’s power to intrude on our lives for our own good will be virtually unlimited.

[...]

You heard about standing today. The federal government thinks it can tell the states to disregard their own laws – like it is doing with Arizona, but then also says the states do not have the same right to challenge federal laws in court. That is not how our system of government is set up. The founders set it up so the states were a check on potentially overreaching federal authority.

I have said all along that this lawsuit is not about health care. It is about liberty. At the same time, I understand that people want more affordable health care, and I sympathize with people who honestly cannot afford it. As a state senator, that was a problem I tried to address by trying to pass a law to allow our citizens to buy better or cheaper plans in other states. But as someone who has sworn to uphold the law, I cannot endorse taking away the rights of all so that government can provide health care to some.

When a ruling will be issued from the Fourth Circuit Court of Appeals is unknown. All three judges were appointed by Presidents Bill Clinton or Barack Obama. The panels are chosen randomly.

Partner institution Liberty Counsel, a nonprofit law firm that traditionally defends right-wing causes, is representing the university and two private individuals, Michele Waddell and Joanne V. Merrill, in the lawsuit (PDF), which was first filed by Liberty Counsel on March 23, 2010, the same day President Obama signed the health care bill into law. The federal suit, first filed in the U.S. District Court for the Western District of Virginia, challenges both the individual and employer mandates and centers around the complaint that the faith-based university could not refuse insurance companies that cover abortion or other health care services the university considers objectionable. Liberty Counsel argued that the new health care law violates the university’s rights as a religious institution but lost the case.

Liberty Counsel has since appealed in the U.S. Court of Appeals for the Fourth Circuit, and on Tuesday at 9:30 a.m. the oral argument in the appeal will be heard at the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., to be followed by a press conference.

In a press statement released Monday, Liberty Counsel said it expects a ruling to be decided by the end of the year at the case will likely move on to the Supreme Court.

“I am looking forward to the argument tomorrow,” said Mathew D. Staver, founder of Liberty Counsel and dean of Liberty University School of Law, in the statement. ”This massive health insurance law goes beyond the outer limits of the Constitution. It is a big step toward a centralized government. The stakes riding on this lawsuit are high. This case goes beyond health insurance and is more about the role of the federal government to control private decisions and burden the free enterprise system.”

Specifically, plaintiffs are suing U.S. Treasury Department secretary Timothy Geithner, Health and Human Services secretary Kathleen Sebelius, Labor Department secretary Hilda L. Solis and U.S. Attorney General Eric H. Holder Jr., and claiming that certain provisions of the health care act violate the following constitutional amendments in the Bill of Rights:

• First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
• Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
• 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Liberty Counsel has also argued that the university should be exempt from the health care act under the Religious Freedom Restoration Act of 1993 (which was struck down by the Supreme Court in 1997). In February, the American Civil Liberties Union filed a friend-of-the-court brief, arguing that religious beliefs should not dictate access to health care service for others.

This lawsuit represents the first challenge to the health care law to be argued at the appellate level.

A separate suit, which will be heard in the same court following Staver’s testimony, Commonwealth of Virginia, et al. v. Kathleen Sebelius, challenges the individual mandate in the health care act  but not the employer mandate.