By Brian Fraga - OSV Newsweekly, 4/15/2012
Religious liberty may not have been front and center, but the recent arguments at the U.S. Supreme Court over the constitutionality of the 2010 Patient Protection and Affordable Care Act still carry significance for the faith community, legal experts said.
“The way the court decides on the individual mandate has an enormous impact on religious freedom and the sanctity of life,” said Casey Mattox, senior legal counsel for the Alliance Defense Fund, a coalition of Christian attorneys who specialize in cases involving religious freedom.
Mattox told Our Sunday Visitor that the health care law’s requirement that individuals purchase health insurance — known as the individual mandate — is directly connected to the U.S. Department of Health and Human Services’ controversial mandate that health insurance plans, including those offered by religiously affiliated employers, cover all government-approved forms of birth control, sterilization and abortion-inducing emergency contraceptives.
Possible win by default
Mattox said he would not be surprised to see the Supreme Court justices consider the individual mandate as a root cause of the ongoing threats to religious liberty and conscience protections when they form their opinions.
“The First Amendment protects Americans from enforced mandates that we act against our own consciences,” Mattox said.
Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which is representing plaintiffs in three lawsuits challenging the HHS mandate, told OSV that if the Supreme Court strikes down the entire health care law, the HHS mandate is then nullified because the law authorized the contraceptive mandate to begin with.
“If the Affordable Care Act is entirely struck down, then we win our lawsuits by default,” Duncan said. “But the Becket Fund will press forward if the mandate still stands after the court’s ruling.”
The Supreme Court is expected to issue its ruling by June, but it remains difficult to predict exactly how the court will decide, and whether the justices would move to strike down individual provisions or the entire health care law itself.
Over three days of oral arguments, from March 26-28, the Supreme Court heard arguments over the constitutionality of the health care law, dubbed Obamacare by opponents.
The main question the court is considering is whether Congress exceeded its constitutional authority to regulate interstate commerce by requiring everybody to purchase health insurance, or pay a penalty. A coalition of state attorneys general who are challenging the law say the Constitution’s commerce clause does not enable Congress to compel people to do business with private companies.
The court also heard arguments as to whether the penalty for not buying health insurance constitutes a tax and if the law’s expansion of Medicaid is an improper demand on the states, which help foot the bill. The justices also studied the question as to whether they would have to strike down the whole health care law, or let parts of it stand, if they were to decide that the individual mandate is unconstitutional.
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If the lines of questioning are any indication, and that is not always the case historically, five of the nine justices appear skeptical with the federal government’s argument that Congress can pass a mandate requiring Americans to purchase a commercial product such as health insurance.
“The federal government is not supposed to be a government that has all powers. If the government can do this ... what else can it not do?” asked Justice Antonin Scalia.
U.S. Solicitor General Donald Verrilli — whose performance defending the health care law was panned by many legal observers — argued the government can require people to buy health insurance because everybody, at some point, will need health care. That prompted Justice Samuel A. Alito Jr. to counter that the government could then theoretically mandate people to buy burial insurance since everyone will die.
However, Justice Anthony Kennedy — seen as the swing vote — signaled concerns that the health care law could mark a troubling shift in the government’s power over individual liberty.
“When you are changing the relation of the individual to the government in this ... unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” asked Kennedy.
Robert A. Destro, a law professor and director and founder of the Interdisciplinary Program in Law & Religion at the Columbus School of Law at The Catholic University of America, told OSV that he could see Kennedy siding with the conservative Scalia or with the court’s liberal camp since some of his other statements indicate he may think the health care law, while a good idea, just goes too far in some places.
Divided, it falls?
Destro believes the law is unconstitutional because, he argues, Congress does not have the legal authority to compel people to spend their own money to purchase health insurance. If the government were to impose a tax and set up a single-payer national health care system, that would be a different matter, since the Constitution grants Congress the authority to collect taxes.
However, Destro says the current approach consists of the government telling people they have to buy a health insurance product that covers morally objectionable services such as contraceptives, abortifacients and sterilization.
“When you talk about the individual mandate, it’s not just that you buy insurance. The mandate is that the government wants to tell you the kind of insurance you have to get,” Destro said.
Assuming the individual mandate falls — a possibility conceded by several mainstream media commentators — the question remains as to whether that means the entire law is void, or whether most of it is allowed to stand.
During arguments in the third day of hearings, Scalia suggested that the health care law without the individual mandate is essentially a different law that might not have passed through Congress. Scalia also bristled at the suggestion that the court could comb through the law’s 2,500 pages and decide which provisions stand. He likened that exercise to cruel and unusual punishment.
“The real difficult question is what happens to the Affordable Care Act if the individual mandate is struck down. It’s very difficult to tell which way the court will go,” said Duncan, who added that arguments over the commerce clause do not mean the case carries no significance for Catholics and people of faith.
“The law is the only reason HHS was able to come up with the mandate to begin with,” Duncan said. “We certainly hope our lawsuits present another big problem with the (health care) law.”
Even if the court strikes down the law, and with it the HHS mandate, the threats to religious liberty will remain, said Destro, who mentioned several recent clashes between the federal government and Catholic agencies, including HHS’s decision to strip an anti-human trafficking grant from the U.S. Conference of Catholic Bishops because of its refusal to refer trafficking victims to abortion providers.
“I don’t anticipate the threat will be going away anytime soon,” Destro said.
Brian Fraga writes from Texas.
Please note: Comments left online may be considered for publication in the Letters to the Editor section of OSV Newsweekly.
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