WASHINGTON — Before an eager crowd of visitors and protesters demonstrating in front of the high court, the U.S. Supreme Court June 28 handed down a ruling that thrilled advocates for universal health care and set the stage for a defining moment in federal court over the right to religious freedom.

The ruling found that the individual mandate in the Affordable Care Act — the requirement that most Americans buy health insurance or pay a fine — is constitutional as a tax. Those who had challenged the constitutionality of the individual mandate argued that it violated provisions of the Commerce Clause, but the ruling provided a way around that argument.

The decision provoked dismay from Catholic and pro-life groups that feared the ruling leaves in place a controversial provision, authorized by the health bill, that coerces objecting religious institutions and individuals to provide co-pay-free abortion drugs and other services. But religious-freedom advocates said today’s ruling did not address this issue and said that related legal challenges would move forward in the courts.

The Becket Fund for Religious Liberty, and other public interest groups representing religious institutions and individuals who have challenged the contraception mandate in court, vowed to press on with its fight to defend the free exercise of religion and individual conscience rights.

Indeed, while the ruling did not address the constitutionality of the contraception mandate, legal experts believe two passages signal that the court might be open to First Amendment concerns.

In the majority opinion, Chief Justice John Roberts stated, “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.”

Justice Ruth Bader Ginsburg also wrote for the majority, “Other provisions of the Constitution also check congressional overreaching. A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”

Hannah Smith, senior counsel at the Becket Fund, told the Register that this language suggests that the court did not give the health bill a pass on constitutionally protected freedoms. The HHS mandate does “interfere with the free exercise of religion by forcing religious organizations across the country to violate their religious beliefs,” Smith said.

Thus, said Smith, “today’s Supreme Court decision makes clear that Obamacare is still subject to legal challenge. Indeed, if anything, it suggests that the Supreme Court is willing to entertain arguments that the HHS mandate violates the right of religious liberty.”

The Becket Fund represents the Eternal Word Television Network in its legal challenge to the HHS mandate; the Register is a service of EWTN.

Richard Garnett of the University of Notre Dame agreed with Smith’s analysis. Any "regulation authorized by the Commerce Clause, or a tax authorized by the taxing power, still has to comply with the First Amendment,” said Garnett, a top constitutional scholar. “It’s certainly true that nothing in today’s decisions means that the preventive-services mandate is permissible — and that the challenges to that mandate are as strong today as they were yesterday."

Going Forward

Michael Warsaw, president and CEO of EWTN, said today’s decision was “a disappointment" for the network. "It was our hope that the court’s decision would stop the implementation of the HHS mandate that requires employee health plans to provide coverage for morally objectionable services like contraception, sterilization and abortion-inducing drugs."

He added, “Because the court has upheld the law, the rules that empower the government to issue its unjust mandate appear to remain in effect. As a result, the EWTN lawsuit seeking relief from the mandate will continue to move forward.”

In 2010, the bruising fight to pass the landmark health bill featured a central role for the U.S. Conference of Catholic Bishops; Sister Carol Keehan, the president and CEO of the Catholic Health Association; and pro-life Democrats, under pressure to approve the bill by their party. Ultimately — and unpredictably — the approval of the contraception mandate in January of this year energized and united many Catholics behind the bishops’ crusade for religious freedom, providing a defining moment for the Church in the United States.

While legal and health-care experts, lawmakers and ordinary citizens have debated whether the health bill will strengthen American health care and broaden access, First Amendment and pro-life issues remain dominant concerns for a Church that long promoted universal health care. The bishops' conference today called on lawmakers in Washington to address unresolved pro-life concerns and threats to religious freedom posed by the controversial contraception mandate authorized by the health bill.

House Speaker John Boehner pledged to enact legislation that would overturn the health law, which continues to draw largely negative reaction from voters. “Today’s ruling underscores the urgency of repealing this harmful law in its entirety. What Americans want is a commonsense, step-by-step approach to health-care reform that will protect Americans’ access to the care they need, from the doctor they choose, at a lower cost,” said Boehner.

President Barack Obama today hailed the ruling as a major victory for his administration. The White House, Democrat policymakers and liberal legal scholars had exerted intense pressure on the high court to uphold the constitutionality of the bill. Still, many experts were surprised that the chief justice, one of five Catholics on the court, voted in the bill’s favor, while others focused on the specifics of the ruling.

“That the court upheld by a 5-4 vote the Patient Protection and Affordable Care Act — 'Obamacare' — is not surprising. That was perhaps the most likely of a small number of plausible outcomes,” said Gerard Bradley, a constitutional scholar at the University of Notre Dame.

“But the basis of the ruling, which was to understand the individual mandate as an exercise of Congress’ power to tax and not as a Commerce Clause exercise, is very surprising indeed. That the chief justice was the main architect of this reasoning is more surprising still.”

The Bishops

The  bishops' statement today noted that the conference had opposed the health bill because it “allows use of federal funds to pay for elective abortions and for plans that cover such abortions, contradicting long-standing federal policy. The risk we identified in this area has already materialized, particularly in the initial approval by the Department of Health and Human Services (HHS) of ‘high risk’ insurance pools that would have covered abortion.

“Second, the act fails to include necessary language to provide essential conscience protection, both within and beyond the abortion context.”

Noting the fight over the HHS contraception mandate, the conference statement argued that the bishops were right to oppose the bill.

“The lack of statutory conscience protections applicable to ACA’s new mandates has been illustrated in dramatic fashion by HHS’ ‘preventive services’ mandate, which forces religious and other employers to cover sterilization and contraception, including abortifacient drugs.”

The conference also expressed its concern about how “immigrant workers and their families” will be affected by the provisions of the new health bill.

“ACA leaves them worse off by not allowing them to purchase health coverage in the new exchanges created under the law, even if they use their own money. This undermines the act’s stated goal of promoting access to basic life-affirming health care for everyone, especially for those most in need.”

The USCCB’s decision to withhold support for the health bill was painful, but the bishops soon faced a more complex and difficult challenge when Health and Human Services Secretary Kathleen Sebelius approved the contraception mandate on Jan. 20.

Cardinal Timothy Dolan of New York, the USCCB president,  immediately opposed the rule, asserting that it posed a direct threat to the free exercise of religious institutions and individuals who opposed the law on moral or religious grounds.

After pushback from some Catholic groups who shared the USCCB’s opposition to the law’s unusually narrow religious exemption, which only shielded houses of worship, President Obama announced an “accommodation” on Feb. 10.

The move changed nothing for the bishops, but it earned the approval of Sister Carol Keehan and some other White House allies. The administration touted Sister Carol’s support until she also withdrew her support for the accommodation this month.

Today, Sister Carol released a statement that provided tentative support for the ruling and did not echo pro-life or First Amendment concerns.

“We are pleased that, based on an initial read of the ruling, the ACA has been found constitutional and will remain in effect. CHA has long supported health reform that expands access and coverage to everyone.

“In the coming weeks and months, we will continue working closely with our members, Congress and the administration to implement the ACA as fairly and effectively as possible,” read Sister Carol’s statement.

However, Paul Danello, an expert on health-care law and a canon lawyer, offered an entirely different judgment of the high court’s ruling and its immediate consequences for Catholics health care.

“The truly stunning aspect of the decision is that the federal government can now compel any action it wishes by taxing it. Do you refuse to have an abortion? Pay crushing taxes until you consent,” asserted Danello, who this year provided guidance on federal fraud and abuse laws for the Office of Inspector General of the Department of Health and Human Services, including the development of “safe harbor” provisions for Catholic institutions that sought to delay compliance with the contraception mandate.

Danello predicted that if the contraception mandate is not overturned, the health bill will have a complex but largely negative impact on Catholic health care.

“Apart from the obvious flood of patients and dollars to all hospitals that PPACA enables the federal government to compel, the Supreme Court’s decision strengthens the likelihood that Catholic hospitals will provide this care, subject to the federal government’s contraceptive/abortion mandate, that is, of course, grounded in PPACA. I cannot imagine a more dismal result for this country and the Catholic Church.”

A spectrum of U.S. groups, from the Chamber of Commerce to Republican attorneys general, expressed dismay at today’s ruling and vowed to pursue various remedies. Meanwhile, Catholic leaders say they will continue their First Amendment fight, strengthened in the paradoxical truth that a federal law threatening the free exercise of religion has helped a complacent flock deepen their faith and unite against a clear and present danger.

Though today’s case did not take up the arguments presented in 23 lawsuits in 14 states filed by religious institutions and individuals objecting to the contraception mandate, the Becket Fund’s Hannah Smith said those suits will continue.

“Never in history has there been a mandate forcing individuals to violate their deeply held religious beliefs or pay a severe fine, a fine which could force many homeless shelters, charities and religious institutions to shut their doors,” said Smith.  

Indeed, perhaps the greatest irony in the Church’s crusade is that the faithful are defending the right of Catholic institutions to adhere to Church teaching on contraception — moral doctrine once openly repudiated by dissenting theologians.

“Our opponents have cleverly chosen a wedge issue. They know it’s not a popular teaching, it hasn’t been well defended, and so, by trying to make it a fight about contraception, they are using it as a wedge to open the door to greater violations to religious liberty,” Baltimore Archbishop William Lori told the Register today, during an interview at the Vatican.

“It might be a wonderful moment — it is a wonderful moment — for us to step back and say, ‘Why didn’t we teach what we teach?’ Isn’t our teaching on life issues, on the sacredness of human life and its origins, a further demonstration — maybe the primary demonstration — of our teaching on the dignity of the person endowed by rights from God?”