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High Court Debates Obamacare

Skepticism Among Justices Encourages Law’s Opponents

BY Joan Frawley Desmond

Register Senior Editor

April 8-21, 2012 Issue | Posted 4/2/12 at 10:52 AM

 

WASHINGTON — The U.S. bishops advocated for universal health insurance for decades, but could not endorse the 2010 Patient Protection and Affordable Care Act because of concerns about abortion funding and weak conscience provisions.

The U.S. Supreme Court completed three days of often contentious oral arguments on the constitutionality of the two-year-old health law at the end of March. And, for Church leaders, the proceedings serve as a painful reminder of the difficulty of securing universal health care in this country, but also the administration’s failure to embrace the moral concerns of a natural ally on social policy.

Asked to comment on the high-profile case before the court, Sister Mary Ann Walsh, a spokeswoman for the U.S. Conference of Catholic Bishops, offered a terse comment in an email message: “The U.S. bishops are in favor of health-care reform that protects life from the moment of conception until natural death.”

As the nine justices took up the high-profile case, backers of the bill gathered outside the court to wield signs and chant slogans of support, even as other groups opposing the bill conducted counter demonstrations, press conferences and prayer services. But after the first morning of strong exchanges between the justices and the solicitor general representing the federal government, the USCCB’s long-term policy goal seemed even more remote.

The future of the law is in doubt, according to unexpectedly gloomy media speculation. The New York Times offered an analysis likely to dampen the hopes of the law’s supporters.

Summarizing the questions regarding the individual mandate from Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Anthony Kennedy, the Times’ March 27 article noted, “The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one.”

However, Gerard Bradley, a law professor at the University of Notre Dame, cautioned against this kind of speculation.

“It is perilous to predict the results of a Supreme Court case by the tenor of the oral arguments. Many times a justice who appears to be hostile to one side or the other (because his or her questions of counsel appear pointed or skeptical) is really looking for reassurance that there is an answer to a lingering question a justice may have,” said Bradley — before predicting that the court would ultimately uphold the individual mandate “by at least a 5-4 vote.”

At issue is whether Congress possesses the authority to force Americans to obtain insurance or impose a fine on them — the gist of the “individual mandate” under review. But if some justices raised concerns about a federal law forcing citizens to purchase health insurance or incur fines, Justice Ruth Bader Ginsburg took a different approach.

Ginsburg observed that similar questions had been raised about the establishment of the Social Security system and questioned rhetoric describing the new health bill as “a government takeover.”

Ginsburg’s plaintive remark would likely echo the thoughts of many Catholic supporters of universal health care who initially endorsed the Obama administration’s effort to extend insurance to an estimated 30 million people.

“Health-care-reform legislation and implementation should be supported that 1) ensures access to quality, affordable, life-giving health care for all; 2) retains long-standing requirements that federal funds not be used for elective abortions or plans that include them and effectively protects conscience rights; and 3) protects the access to health care that immigrants currently have and removes current barriers to access,” reads a February 2010 statement summarizing the position of the USCCB.

When the final version of the proposed Affordable Care Act failed to incorporate language barring subsidies for elective abortions or securing conscience rights for health-care workers, the bishops regretfully withheld their support.

“We will advocate for addressing the current problems in the Patient Protection and Affordable Care Act, as well as others that may become apparent in the course of its implementation,” stated the USCCB in a subsequent statement addressing health-care issues.

The conference’s decision to withhold support for the bill was validated earlier in March, when pro-life groups reported that federal regulators had just approved a final rule requiring all state insurance exchanges to feature plans that include segregated monthly premiums for elective abortion services of no less than one dollar per subscriber.

“This scheme allows Obamacare to get around the controversial issue of government-funded abortions with a new funding source: mandatory private payments by you, the insured,” wrote Dorinda Bordlee, Nikolas Nikas and Mark Rienzi in a March 27 National Review post.

While some bishops have expressed regret that the health-care law’s anti-life provisions precluded a USCCB endorsement, Obamacare’s many critics say its problems are not limited to federal subsidies for abortion and weak conscience provisions.

“The ‘contraceptive’ mandate, which is but the first of hundreds of governmental diktats in the implementation of Obamacare, should cause everyone to re-examine their thinking about the new health bill,” argued George Weigel, who has written extensively on Catholic social doctrine.

“There must be ways to address the Church’s concern that everyone has adequate health care without turning one-sixth of the economy, and a good chunk of the culture, over to the unregulated regulators at the Department of Health and Human Services,” added Weigel.

James Capretta, an expert on federal health-care policy and a Catholic who serves as a research fellow at the Ethics and Public Policy Center, a Washington, D.C.-based think tank, said, “In some ways, the bishops had little choice but to be in favor of a process that they believed would result in a more equitable system, without having a lot of influence or control over that process.” Capretta was associate director of the White House Office of Management and Budget from 2001 to 2004.

But Capretta argued that Obama and many of the special interests pushing for the health-care bill embraced an approach to expanding insurance coverage that is “dangerous for the health-care system and the position of Catholics in it.”

First, the new law is a “mechanism for drawing power and authority to the federal government. Second, health care centers on important moral questions, and the federal government has a secular orientation different from the Catholic Church’s view of human dignity,” Capretta asserted.

The Supreme Court is expected to issue its ruling by June. But whatever the fate of the law, the bishops will be heartened to learn that Capretta believes the national debate on Obamacare has actually moved the country closer to accepting the need for dramatic reforms that reduce health-care costs and provide coverage for patients with pre-existing conditions — even though opinion polls point to broad support for repealing all or some elements of the law.

In an article in National Affairs, Capretta argues that a successful “replacement plan must be true to the Constitution and reflect a genuine federalist philosophy. Any program to address the problems in American health care will entail some degree of national policy, but it can still leave ample room for state initiative and encourage state-level solutions.”

If the new law is indeed repealed, the next election could determine who gets the next chance to craft legislation that incorporates the Church’s concerns about universal health care protected by strong moral guidelines.

And Notre Dame’s Gerard Bradley suggests that the president’s political fortunes are already bound to the controversial health bill — whatever its fate.

“The net effect either way is in favor of the Republicans,” Bradley predicted. “If the court strikes down the individual mandate, the president may be seen as careless about the Constitution. If the court upholds the individual mandate and the whole reform, then he could be blamed for orchestrating an oppressive, unaffordable overhaul.”

Joan Frawley Desmond writes from Chevy Chase, Maryland.