The road ahead in the anti-ObamaCare legal fight 

Tuesday was a likely setback in the efforts to see the national health care law overturned.

A computerized lottery delivered a bad break to opponents of the legislation when it randomly selected three Democratic appointed judges from the Fourth Circuit Court of Appeals to hear two cases challenging the law's constitutionality.

The entire Fourth Circuit has 14 judges, 7 of which were appointed by Democrats, 6 of which were appointed by Republicans, and one judge who was originally appointed by President Clinton but then renominated by President Bush. Yet the three judges hearing the case were Obama nominees James A. Wynn Jr and Andre M. Davis and Clinton nominee Diana Gribbon Motz.

Based on their backgrounds and line of questioning during the oral arguments, it doesn't bode well for challengers of the law, the state of Virginia and Liberty University.

However, those hoping to see the law, or at least its individual mandate, struck down by the courts, will have several more cracks at the bat.

Two other appeals courts will be hearing challenges to the health care law – the Sixth Circuit, which will hear a challenge from the Thomas More Law Center on June 1st in Cincinatti, and the 11th Circuit, which will consider the suit filed by 26 states led by Florida.

The 11th Circuit case, to be heard on June 8 in Atlanta, would likely provide opponents of the health care law the best chance for victory at the appeal's level.

While opponents of the law could lose at every appeal's court and still appeal all the decisions to the Supreme Court, a split verdict at the appellate level would likely improve the prospects for those suits succeeding. Or at the very minimum, ensure that the case gets heard at the Supreme Court.

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Philip Klein

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