On February 8, 2011, the State of Virginia filed a petition for direct U.S. Supreme Court review of the decision of the U.S. District Court for the Eastern District of Virginia declaring the “individual mandate” provision in the Patient Protection and Affordable Care Act (PPACA) unconstitutional. Unlike the recent ruling by the U.S. District Court for the Northern District of Florida, the Virginia case severed the individual mandate provision from the rest of PPACA, thereby permitting the remainder of the act to stand.

Most experts think the constitutionality of PPACA will ultimately be decided by the U.S. Supreme Court. It is unclear, however, whether the U.S. Supreme Court will take the unusual step of granting review prior to a ruling by an appeals court. Appeals of U.S. district court decisions are normally first heard in the U.S. circuit courts of appeal, although Rule 11 of the Supreme Court practice rules permits an immediate review in the high court upon a showing that the case is of “imperative public importance.” According to the Virginia Attorney General, the recent developments concerning PPACA, including divergent district court decisions and a U.S. House of Representatives vote to repeal the law, makes this case an “excellent candidate” for immediate review in the U.S. Supreme Court. Faegre & Benson will continue to provide updates on this evolving litigation.