The Court of Appeals in the Liberty University case ruled 2-1 that the Anti-Injunction Act (AIA) barred it from reaching the merits of the case, ruling that if the individual insurance mandate in ObamaCare is a tax, then the tax had to be paid before a court could entertain the suit. Liberty Counsel filed a petition with the Supreme Court, asking it to reverse the Court of Appeals. The Supreme Court heard three days of oral argument on challenges to Obamacare, and the first day was dedicated to the issue raised in the Liberty University case. In June 2012, the Supreme Court ruled that the AIA does not apply to the individual insurance mandate, but did not reach the merits of Liberty University’s case. The Supreme Court then denied Liberty University’s request for review.Liberty Counsel then asked the Court to grant its petition, vacate the ruling of the Court of Appeals, and send it back to address the unresolved merits of the case, namely, the employer mandate and the Free Exercise claim based on ObamaCare’s forced funding of abortion. The DOJ filed its response late yesterday and agreed with Liberty Counsel’s request.

If the Court grants the request, now unopposed, then Liberty University v. Geithner will be the first case in the nation in which a federal court of appeals would consider challenges to the employer mandate and the Free Exercise of Religion claim. The case could then go back to the Supreme Court in 2013.

“I am very pleased that the Department of Justice agrees that the case should go back to the Court of Appeals to address the unresolved issues in ObamaCare. ObamaCare is the biggest funding of abortion in American history,” said Mat Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law. “ObamaCare will for the first time require employers and individuals to directly fund abortion. This abortion mandate collides with religious freedom and the rights of conscience,” Staver said.