National Catholic Register

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Obamacare Ruling Allows Lawsuits to Continue

Religious Freedom Still at Stake

BY Joan Frawley Desmond

Register Senior Editor

July 15-28, 2012 Issue | Posted 7/6/12 at 5:01 PM

 

WASHINGTON — Now that the U.S. Supreme Court has upheld the Patient Protection and Affordable Care Act, religious organizations and individual conscientious objectors will press forward with lawsuits against the “contraception mandate.”
The Supreme Court June 28 decided 5-4 that the Affordable Care Act’s “individual mandate” — 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.
While the ruling did not address the constitutionality of a requirement of the U.S. Health and Human Services Department that most health-insurance plans provide free contraceptives, sterilization and abortion-inducing drugs, 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 for Religious Liberty, 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, the “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 and the Register’s publisher, said the court’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. After the ruling, the bishops’ conference 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 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 and a George W. Bush appointee, voted in the bill’s favor.
“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.”
George Weigel, in a post on the National Review website, viewed the chief justice’s decision through a different lens:
Among the “deeper truths implied by the Roberts opinion is that the Congress as presently constituted and currently functioning has too often been derelict in its constitutional duties. Thus, at several points in his opinion, Chief Justice Roberts suggests ... that the Congress should get serious. The majority opinion underscored at several points that constitutional approval of the individual mandate was not a judgment on the mandate’s soundness as policy,” wrote Weigel.
“This implies that the policy might, in fact, be a stupid one — stupid policy the Obama administration made worse by an appeal to the Constitution’s Commerce Clause that, upheld, would have destroyed the notion of the federal government as a government of limited and enumerated powers.”

The Next Step
A spectrum of groups, from the U.S. Chamber of Commerce to Republican attorneys general, expressed dismay at the Supreme Court 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.
“In some sense, there has been a surprising unity, at least among the bishops, if not among all Catholics,” Archbishop Charles Chaput of Philadelphia told the Register after the decision was announced. “It’s a lesson to us. [The battle for] religious freedom is going to continue; it’s going to be a long fight. We have to never let down our guard. We have to be calling our people to be engaged on this issue.”
The faithful will soon get a jolt when religious institutions and private businesses that refuse to comply with the HHS mandate are hit with government fines and lawsuits from employees who want co-pay-free contraception, abortion drugs and sterilization included in their health plans.
At present, religious nonprofits that have not provided contraception for their employees since Feb. 10, the date of President Obama’s “accommodation,” will receive a one-year extension before they must comply. But employees could begin filing lawsuits as soon as their health insurance is updated after Aug. 1.
“Some religious nonprofits that have not covered any contraception after Feb. 10, 2012, will have their government fines delayed for one additional year,” confirmed Matt Bowman, legal counsel for the Alliance Defense Fund, a public interest group representing Catholic and evangelical plaintiffs challenging the HHS mandate. He noted that there will be no such reprieve from lawsuits filed by employees who want coverage for “free” contraception.
A June 28 statement from the U.S. bishops 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’s 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.”
“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 the Becket Fund’s Hannah Smith. 
On the day of the court ruling, Sister Carol Keehan released a statement that provided tentative support 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 Catholic 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.
Danello 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.
He predicted that if the contraception mandate is not overturned, the health bill will have a complex and 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.”
And yet, it seems 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 during an interview at the Vatican (see In Person interview, page one).
“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?”