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Tomorrow morning at 9:30, in the U.S. Fourth Circuit Court of Appeals, the Obama administration’s appeal of Judge Henry Hudson’s ruling that the federal health care law is unconstitutional will be heard. As we have been at every step of the way, from the motion to dismiss to Judge Hudson’s decision, we will be there to cover it and will have video of Attorney General Ken Cuccinelli’s entire post hearing news conference. We are the only Internet site has posted the entirety of each of his ObamaCare news conferences. Be sure to check back here for coverage of this history-making lawsuit which will play a significant role in the direction of our country.

It was a pro-life, pro-family sweep today at the reconvened “Veto” session of the General Assembly tonight. In addition to a dramatic abortion limiting 21-20 vote within the last hour, the Virginia Senate earlier voted by the same margin to concur with Governor McDonnell and the House of Delegates to restore abstinence education funding that former Governor Tim Kaine cut out of the state budget. As with the vote to ban taxpayer dollars from use in elective abortions in the ObamaCare state run health insurance exchanges, all 18 Republicans were joined by pro-life Democrats Phillip Puckett and Chuck Colgan to get to the magic number of 20 votes and a tie in the chamber allowing pro-life Lt. Governor Bill Bolling to break the tie in favor of the amendment.

The funding, match money corresponding to a federal grant, was initially presented in the House budget but, in the final days of session, Senate conferees stripped it out in budget negotiations. But today, the House reiterated its position by a 69-29 vote, which sent it to the Senate. Senator Colgan (D-29, Manassas), chairman of the Senate Finance Committee, introduced the amendment and urged its passage. Pro-abortion Senator Mary Margaret Whipple (D-31, Arlington) rebutted the argument, parroting Planned Parenthood and the National Abortion Rights Action League, which claim abstinence education is ineffective (despite an Obama administration study that says otherwise).

The Family Foundation thanks Governor McDonnell, Lt. Governor Bolling, and the members of the House and Senate who ensured the success of these two important pieces of legislation that soon will become law, as well as all committed pro-life, pro-family Virginians who answered our call to contact their state legislators this week. More to come tomorrow about today’s exciting developments.

In addition to Governor Bob McDonnell’s amendment to HB 2434, which would restrict Virginia’s health insurance exchanges under ObamaCare from covering abortion services, Governor McDonnell also added an amendment to reinsert abstinence funding in the Virginia budget. This funding was included in the House of Delegates budget, but budget conferees left it out of the final budget which the General Assembly approved and sent to the governor. Such funding was a regular line item in the budget until then-Governor Tim Kaine abruptly stripped it out in November 2007 as a political IOU to Planned Parenthood.

Tomorrow, the General Assembly reconvenes for its annual “Veto Session,” when it reconsiders gubernatorial vetoes and amendments to bills, and will have the opportunity to include this provision back into the budget. While it is likely the House will accept this amendment, the Senate will be an uphill climb. Please contact your senator today and urge support for Governor McDonnell’s abstinence funding amendment to the budget.

Planned Parenthood, and its ally NARAL, have made it their national agenda to stop abstinence education. Both groups consistently assail abstinence programs as being ineffective. One legislator, who works closely with Planned Parenthood and NARAL, said, “The reality is with teenagers, their hormones come into play, and abstinence-only doesn’t always work.” Work for who? The more teens postpone sexual activity, the less profit the abortion industry makes.

The pro-abortion lobby also asserts that “abstinence education doesn’t work,” “parents don’t support abstinence education,” and “it’s naive to think that teenagers can be abstinent.” None of those arguments, though, are correct according to the U.S. Department of Health and Human Services. In fact, an October 2010 study paid for by the federal Department of Heath and Human Services found that abstinence education is highly effective and it is widely supported by parents and teenagers.

The HHS survey found that 70 percent of parents agreed that it is “against [their] values for [their] adolescents to have sexual intercourse before marriage” and that “having sexual intercourse is something only married people should do.” Adolescent beliefs, according to the survey, were similar. In fact, there are federal abstinence education funds that Governor McDonnell has applied for that Mr. Kaine refused. So, even the Obama administration realizes it works.

Clearly, abstinence education is not only effective, but it is widely supported among both parents and teens. So, please contact your senator today and urge support of the governor’s amendment to reinstate abstinence funding in the budget.

Click here if you know your senator and need his or her phone number.

Click here if you don’t know who your senator is.

Governor Bob McDonnell today gave the national Republican response to the weekly presidential radio/Internet address. After thanking our military personnel for its bravery in Libya and humanitarian assistance in Japan, as well as its ongoing operations in Afghanistan and Iraq, he went after Washington for its unsustainable spending and debt, and the increasing costs of Medicaid, which is rapidly accounting for as much as a fifth to a quarter of states’ budgets. He then cited Virginia as an example of balancing budgets through spending reductions. He also keenly noted that while Washington liberals were in a tremendous hurry to push through ObamaCare (it became law one year ago this week), which will add more to the national debt and state obligations, it is dragging its feet in determining its legality by blocking, stalling and delaying the legal process, costing us yet more millions of tax dollars. Governor McDonnell concluded by enumerating proposals by Republican governors that actually would reform health care without the new mammoth and oppressive bureaucracy that is ObamaCare.

“It’s also unconstitutional. … But now, the very same administration that was in such a rush to pass the bill is in no hurry to find out if it’s legal. … Shockingly, the Obama administration opposes an expedited appeal to the Supreme Court.”

Okay. Maybe not so shockingly.

Yesterday, we published the official statement of Governor Bob McDonnell regarding the one year anniversary of the federal healthcare law. In it, he mentions that more than half the nation’s governors support Virginia’s appeal to the U.S. Supreme Court to take the case directly (although the 20-plus states that won in Florida Federal District Court are, for now, content to resume battle with the feds in Appeals Court). Today, we post a mildly abbreviated version of Attorney General Ken Cuccinelli’s update of the case’s status, as sent to supporters earlier today.

Virginia is on a ‘dual track’ in the case at the moment. We have a motion to expedite the case pending in the U.S. Supreme Court and at the same time we are briefing the case for presentation to the 4th Circuit Court of Appeals — the appellate court that covers Virginia.

We have asked the Supreme Court to expedite the case under its Rule 11. They only do this for one or two cases per decade, so don’t bet a lot of money on this one; however, the nature and cost of the healthcare law is the type that they have expedited in the past, so we’ll see what they do.

We submitted the final brief on expediting this week. The Supreme Court will consider our request on April 15th. We could see a decision by the Supreme Court as soon as April 18th. …

Under Rule 11 of the Supreme Court, Virginia has requested that the Supreme Court pull the case out of the Court of Appeals and hear it directly. This could cut almost a year off of the case, resulting in ENORMOUS savings to both state governments and the private sector if the law is found unconstitutional and stricken. And why go through all the hoops of getting ready to implement a law that may be stricken anyway? Oh, I’m sorry, there I go thinking logically again . . . naturally the Obama administration is opposing this effort . . . I know you’re shocked.

You might ask yourself, “Won’t the Supreme Court want to hear from Appellate Court judges?” And the answer is “maybe.” Remember this case is pure legal argument. There are no documents or other discovery to consider, no trial witnesses, in fact there was no trial at all. So, we are re-arguing the same pure legal arguments from the district court again in the Court of Appeals. Also, five different judges have addressed the merits of the case, with more to come. So, there are going to be an unusual number of judges’ opinions to look at — should the Supremes so choose — without even getting to the appeals courts.

Thus far, we are the only state requesting that the Supreme Court exercise its discretion to expedite the case. Whether or not the Supreme Court decides to expedite the case is entirely within their discretion, so it’s hard to tell what may happen. …

At the same time, we are about to submit our first of two briefs in the appellate court. In their opening brief, the feds made essentially the same arguments that they made in the district court. And while we adjust our presentation to include elements of other cases, our arguments will be the same as in the district court.

We will argue our case on May 10th before a three judge panel of the 4th Circuit (assuming the Supreme Court does NOT expedite the case, thereby taking it out of the appeals court). We will not know who those three judges are until the day of the argument.

Following our hearing, it would then be reasonable to look for a ruling around mid-July. I expect each side to react differently depending on who wins.

If Virginia wins in the 4th Circuit, I expect the federal government to ask the full 4th Circuit to rehear the case en banc (i.e., with all 14 judges of the 4th Circuit participating). This would be consistent with their efforts to drag the case out, as that may add several more months in the 4th Circuit, at which point, whichever side loses en banc will appeal to the U.S. Supreme Court.

If the feds win in the 4th Circuit, I expect that we will immediately appeal to the U.S. Supreme Court.

Once we get to the Supreme Court, I would expect to brief and argue the case during the next term of the Court. The next term of the Court will run from the beginning of October 2011 through the end of June 2012.

I would then expect that a final decision in our case will most likely be made (best guess) toward the end of June 2012. I think it will be very hard for the Obama administration to drag the case beyond June of 2012.

Obviously, that is very interesting timing in light of the Presidential race. And it further baffles me as to why the President would want to drag the case as close to Election Day as possible. …

Tomorrow marks the one-year anniversary of the Obamacare bill becoming the Obamacare law, as President Barack Obama added his signature to the legislation. It also marks the one year anniversary of Virginia’s lawsuit contesting the bill’s constitutionality (and defending the Virginia Health Freedom Act), as lawyers from the Office of Attorney General moments after the signing ceremony memorably walked the petition a few blocks north in downtown Richmond to the new Federal District Courthouse that now dominates Broad Street. Ever since, the issue has dominated the news. Virginia won rounds one (beating back the feds’ motion to dismiss) and two (the ruling that the law is unconstitutional). Now the Obama Justice Department is appealing to the U.S. Fourth Circuit Court of Appeals, which maintains a modest residence on Main Street in a building the Confederacy used as its administrative offices, just next door to the OAG. The appeal will be heard in May.

More symbolism: Richmond’s unfancied VCU soundly defeated Washington’s big, bad, sophisticated Georgetown in the NCAA Basketball Tournament last weekend, the second of its three upset wins last week. A sign that Richmond does things better than D.C.? That the third time also will be a charm? That the righteous and smaller underdog, the scoffed at state capital will defeat the unjust behemoth federal city? We’ll see.

In the meantime, below is a statement issued today by Governor Bob McDonnell on the twin anniversaries:

Tomorrow marks the one year anniversary of President Barack Obama’s signing of the hastily passed 2,700 page federal healthcare bill that creates an unprecedented intrusion on America’s strong free enterprise system and places enormous unfunded mandates on the states. It was also one year ago that Virginia became the first state to file suit against the federal government over the constitutionality of this law. Today, lawmakers, state leaders, and our citizens remain as concerned about the provisions of the law as they were on the day the bill was signed.

It is estimated that implementation of the federal healthcare bill will cost Virginia $2 billion between now and 2022. While we all agree that we must make healthcare more affordable, accessible and accountable, it cannot occur in a manner that infringes on our constitutional rights, makes it harder for private-sector employers to hire new workers, creates major new government bureaucracies, raises taxes and places unfunded mandates on states that we simply cannot afford. We need to improve healthcare in our nation with common sense, free market solutions, not a federal government controlled plan.

A majority of governors across the county strongly support our call for an expedited review by the Supreme Court of the pending health care lawsuits. This will permit us to obtain certainty and finality on the law promptly, and the Obama Administration’s opposition to this request is extremely disappointing and not in the best interest of the American people. As we move past this one year anniversary, we must get clarity on a law that will have a huge impact on states, business and individuals in the years ahead, should it be implemented. We need to improve our healthcare system, but this is the wrong way to do it. It must be replaced with improvements to our excellent medical care system in a way that improves access and reduces costs, while not stifling innovation and creating unsustainable burdens on the states.

Do you think Governor Bob McDonnell is perhaps just slightly perturbed at the Obama administration’s Department of Justice today? Here’s the entirety of his statement, released in the last hour, opposing DOJ’s brief opposing an expedited appeal of the health care lawsuit directly to the U.S. Supreme Court (and skip over the two U.S. Courts of Appeals that will hear the feds’ appeals in the Virginia and Florida cases). It’s terse and Hh doesn’t sound too happy:

I am extremely disappointed by the Obama Administration’s brief opposing Virginia’s request for an expedited review of pending federal healthcare lawsuits. The request for expedited review is one strongly supported by the majority of our nation’s governors. It is a common sense request to provide critically needed certainty and finality to this ongoing issue. The petition to oppose expedited review is detrimental to the federal government, the states, employers and families. The Administration’s opposition to this request is irresponsible and indefensible. A litigation process potentially taking years to resolve is bad for America, and will potentially cost the states tens of millions of dollars. To say to medical providers, business people, insurers, governors and ordinary citizens that costly litigation and delay is preferred over prompt finality is an affront to the common sense of the American people. Everyone knows that the case involves clear issues of constitutional law, which will be settled only in the U.S. Supreme Court. After a huge Democratic party rush to pass the bill on Christmas Eve, there now appears to be no sense of urgency from the Obama Administration to find out if the measure is constitutional. It is our continued hope that the U.S. Supreme Court will consider and grant expedited review as permitted by the rules of court for cases of such historic national importance.

With more than half the states now in court seeking relief from a law that two federal judges have ruled unconstitutional, and governors of said states asking for an expedited appeal because no new arguments or evidence will be submitted to the Appeals Courts, one might think the Obama administration might be willing to cooperate for its own good, if not the good of the people it represents. No doubt it wants to stall and keep the case out of the ultimate arbiters’ hands until after the 2012 election so as to not have to run on a single accomplishment that ultimately may be struck down as illegal. Of course, it’s only the DOJ’s brief. The Supreme Court may still decide to take the case straightaway, but the odds of such a rare occurrence are enhanced if both parties agree to the motion.

In a bit of breaking news, the Fourth U.S. Circuit Court of Appeals agreed to an expedited hearing of the federal government’s appeal of Virginia’s legal challenge to the federal health care law. Here’s Attorney General Ken Cuccinelli’s news release:

RICHMOND (January 26, 2011) — The U.S. Court of Appeals for the Fourth Circuit today granted a joint motion from Attorney General Ken Cuccinelli and the federal government to expedite the hearing of Virginia’s suit against the federal health care law. The case is tentatively scheduled for hearing sometime between May 10 and 13. This replaces a briefing order previously issued by the court.

“Right now, there is a great deal of uncertainty for states, individuals, and businesses. Major decisions are already being made and money is already being spent to comply with a law that may not be around two years from now. We need this suit resolved as quickly as possible, for the good of our citizens and our economy,” said Cuccinelli.

Cuccinelli is still weighing whether or not to request that the U.S. Supreme Court take the case directly and skip the Fourth Circuit altogether.

The court ordered the following briefing schedule:

Opening briefs due February 28

Response briefs due March 28

Reply briefs due April 11

More information on the health care lawsuit can be found at the attorney general’s health care archive, here. Virginia won round one late last year when Federal Judge Henry Hudson of the Eastern District of Virginia declared the statute unconstitutional. The Obama administration’s appeal is of that decision.

Although it is the first of many court decisions he faces, Attorney General Ken Cuccinelli this week became the first person to successfully challenge President Obama’s federal health insurance scheme. U.S. District Court Judge Henry Hudson ruled a key component of the plan — the “individual mandate” — unconstitutional.

In his opinion, Judge Hudson concluded:

Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

He added that the individual mandate “is neither within the letter nor the spirit of the U.S. Constitution.” That letter meaning this: “Regulate” during the days of the constitution’s adoption meant, “to make regular.” Far from taking over entire industries, the federal government instead was to ensure that states didn’t discriminate against businesses from one state to the advantage of one from another.

The Obama administration argued that the constitution’s Commerce Clause gives the government broad authority to order Americans to purchase health insurance because not doing so adversely affects commerce. Of course, this unprecedented attempt to force Americans to purchase a product was predicated on labeling inactivity (not buying insurance) “interstate commerce.” Stranger than fiction, we know.

While the Obama administration will appeal Monday’s decision to the U.S. Fourth Circuit Court of Appeals, Attorney General Cuccinelli would prefer an expedited appeal directly to the U.S. Supreme Court. He was in talks with the Department of Justice about a joint motion to that affect, but it now appears DOJ wants no part of it (better to delay until more and more parts of the law go into affect). However, Mr. Cuccinelli told Fox New Channel’s Greta Van Susteren Monday night he may go forward on that by himself and also may appeal Judge Hudson’s refusal to place an injunction on the health care law (see video). He has 30 days from last Monday to make that appeal. Regardless of how or when, ultimately Obamacare’s fate will be determined by the U.S. Supreme Court.

While there are dozens of reasons to oppose Obamacare (see Obamacare411), the provision that requires otherwise free Americans to purchase health insurance or face penalties is the most egregious — but it is also the financial linchpin of the entire law. Without the mandate, much of the rest of the law is untenable.

Earlier this year, The Family Foundation supported the Virginia Health Care Freedom Act, the basis for the Commonwealth’s lawsuit against the federal government. It protects Virginia citizens from being compelled to buy insurance against their will. We applaud the Attorney General and his staff for their commitment to protecting the freedom of Virginians. For a great perspective on the hearing and Judge Hudson’s ruling, view Mr. Cuccinelli’s post-decision news conference (click here). We are the only news or Internet site that recorded and posted the entire news conference.

Today, the U.S. Circuit Court of Appeals for the District of Columbia lifted a ban on federal taxpayer funding of embryonic stem cell research pending further review (FoxNews.com). The ban was in effect from an injunction issued a couple of weeks ago by a federal district court judge in advance of his final (official) ruling in the case. However, the Appeals Court prohibited the injunction, saying it must accompany an official ruling. When he issues his ruling, expected in the very near future, and if he decides that funding embryonic stem cell research violates federal law, he then can re-issue the injunction.    

Supporters of this failed research, which destroys human embryos, have been up in arms since the injunction — which blocks the new federal funding approved by the Obama administration — was issued by the judge, U.S. Chief District Judge Royce C. Lamberth of the District of Columbia (Washington Post). Because of the injunction, the National Institutes of Health suspended consideration of new grants for the research.

Family Research Council President Tony Perkins said Judge Lamberth’s . . .

opinion noted that “ESC research necessarily depends upon the destruction of a human embryo,” and the plain language of the Dickey-Wicker amendment, passed by Congress every year since 1996, says that no federal funds shall be used for “research in which a human embryo or embryos are destroyed.”

Separately, when ruling on an appeal to stay his injunction (before the appeal to the D.C. Circuit Court of Appeals), Judge Lamberth correctly noted that his decision was pretty simple to come by, especially since Congress was explicit in passing the law:

In this Court’s view, a stay [of the injunction] would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment. Congress remains perfectly free to amend or revise the statute. This Court is not free to do so. … defendants are incorrect about much of their “parade of horribles” that will supposedly result from this Court’s preliminary injunction.

This new legal battle has ripped open the debate over taxpayer funding of research that is unethical, illegal and a complete failure. Rhetoric from researchers who benefit financially from the grants, as well as the politicians and organizations bent on making sure human embryos are not recognized as having any intrinsic value, continues unchanged. They again claim that the use of embryonic stem cells is the only hope for those who suffer from disease and paint those opposed to embryonic stem cell research as “anti-science.”

The truth is, as usual, much different (see StemCellResearchFacts.org). Those who oppose continued funding of failed ESC research instead point to the multitude of successful treatments and cures from adult stem cell research. Dozens of effective and lifesaving treatments are not simply a pipe dream but a reality with adult stem cells which can be manipulated to act in much the same way as embryonic stem cells. If we want to be pro-science and pro-hope for sufferers of disease, shouldn’t we instead fund and support the science that actually is working and actually produces cures? (Even Dr. Oz agrees!)

That’s the message The Family Foundation takes to the General Assembly every year. If Virginia’s taxpayers are going to be forced to pay for research, it should be research that is not only ethical but also successful. While much of the rest of the world has rejected embryonic stem cell research as a hopeless waste of money, in the United States our politicians continue to try to raid ever diminishing public coffers to prop up failure. It’s another bailout that simply must stop.