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Virginia Judge Allows Health Care Challenge to Proceed

A federal judge on Monday ruled that a lawsuit challenging the constitutionality of the new health care reform law could proceed, setting off a fury of politicking on both sides of the issue.

Virginia Attorney General Ken Cuccinelli (R), the lead plaintiff in the lawsuit that has been joined several other state attorneys general, lauded the decision by Henry Hudson, a judge for the District Court for the Eastern District of Virginia. In his ruling, Hudson dismissed the administration’s argument that the lawsuit lacked legal merit.

“We are pleased that Judge Hudson agreed that Virginia has the standing to move forward with our suit and that our complaint alleged a valid claim,” Cuccinelli said in a statement.

However, supporters of the health care law, enacted in late March, downplayed Hudson’s decision in Commonwealth of Virginia v. Kathleen Sebelius, noting that several lawsuits are allowed to proceed every year even though they ultimately prove unsuccessful.

“It’s fairly routine that thousands of cases go forward in this country … where ultimately the plaintiffs lose,” said attorney Walter Dellinger, chairman of the appellate practice at O’Melveny & Myers. Dellinger spoke during a conference call organized by the liberal think tank Center for American Progress.

Cuccinelli is challenging the health care law on the grounds that the federal government is constitutionally prohibited from forcing Americans to buy a particular product. The law mandates that all Americans buy health insurance.

In asking Hudson to throw out the case, lawyers for the Obama administration said the mandate is the same as a tax, arguing that because the Constitution under the Commerce Clause gives Washington the right to levy taxes, the health care law therefore passes constitutional muster.

“This lawsuit is not about health care, it’s about our freedom and about standing up and calling on the federal government to follow the ultimate law of the land — the Constitution,” Cuccinelli said. “The government cannot draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause.”

However, proponents of the law are arguing that this lawsuit is about health care. A summary judgment in this case is scheduled for Oct. 18, just 15 days before the midterm elections.

“Should this lawsuit succeed, it will be devastating,” said Fran Visco, a spokeswoman for the National Breast Cancer Coalition and Fund.

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