Obamacare Goes to the High Court

Obamacare heads to the Supremes. What are its prospects?

WASHINGTON — This coming spring, the U.S. Supreme Court will hear more than five hours of oral arguments in a case challenging President Obama’s signature health-care legislation. The case, brought by Florida and 25 other states and the National Federation of Independent Business, marks the highest profile challenge to the Patient Protection and Affordable Care Act.

The law, also known as “Obamacare,” has been controversial, as debate continues over what exactly are its implications for both conscience and business.

At the heart of the challenge is the constitutionality of the individual mandate, the requirement that everyone purchase health insurance. The mandate was dealt a blow when the 11th Circuit Court of Appeals ruled in August that if it is constitutional for Congress to require “that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die,” then there can be “no limiting principles in which to confine Congress’ enumerated power.”

But it is potential conscience-rights issues that have the U.S. bishops and other defenders of religious liberty most concerned about the unfolding law.

“The bishops were absolutely clear in their letter to Congress in March 2010 warning that passage of the law would lead to taxpayer funding for abortion and contraception and to conscience violations for Catholic health-care providers,” said Grace-Marie Turner, president of the health-care policy-focused Galen Institute and co-author of Why ObamaCare Is Wrong for America. “Their warnings already have tragically been proven correct.”

Turner noted that the law will also disappoint many supporters, including some Catholics, because it will still leave 23 million people, “under the most optimistic projections,” uninsured, “and as many as 80 million more could ‘lose the coverage they have now,’ according to a survey of employers by McKinsey and Co. In addition, as many as 87 million people will be relegated to the Medicaid ghetto — promised coverage but with limited access to actual health care. The ‘reforms’ in the health law will harm the most vulnerable citizens, making it even harder than it is today for them to get care.”

Conscience Concerns

Turner noted that one important Catholic supporter of the legislation was Sister Carol Keehan, president of the Catholic Health Association.

“The [broken] promises that abortion would not be covered, that Catholics would have conscience protection, and that the law would achieve universal coverage are three reasons that Sister Keehan and others should repudiate their support of the law and begin work now to promote the right reform that is based on true Catholic values, respecting life, human dignity and religious freedom,” she said.

Conscience concerns were raised in November before the House Judiciary Committee subcommittee on the Constitution by Bishop William Lori of Bridgeport, Conn., chairman of the U.S. Conference of Catholic Bishops’ new Ad Hoc Committee on Religious Liberty.

Bishop Lori highlighted regulations issued by the U.S. Department of Health and Human Services in August mandating contraception — “including abortifacients” — and sterilization coverage in “almost all private health-insurance plans.” He even cited Sister Carol, saying she is concerned about a “so incredibly narrow” exemption for some religious employers.

“The exception does nothing to protect insurers or individuals with religious or moral objections to the mandate,” Bishop Lori said. “The ‘preventive services’ mandate is but the first instance of conscience problems arising from the Patient Protection and Affordable Care Act — enacted in March 2010 — an act whose goal of greater access to health care the bishops have long supported, but that we had persistently warned during the legislative process did not include sufficient protections for rights of conscience.”

“Public funding should go toward helping and caring for the most vulnerable Americans, not killing them,” said Matt Bowman, legal counsel at the Alliance Defense Fund, which frequently goes to bat for conscience issues in court. “Clearly, the American taxpayers should not be forced to fund abortions, especially during tough economic times, but the health-care act threatens to do that and more. It threatens the conscience rights of health professionals, payers and employers, because it is not subject to existing federal conscience-protection laws, and Congress failed to apply comprehensive conscience protections to the statute. In addition, HHS recently mandated that all employers provide plans that cover abortifacients, contraception and sterilization.”

Bowman highlights the limits, though, of one court case: “Because these are not the issues directly raised on appeal in current litigation concerning the health-care act, the court may only strike down the mandate that individual citizens must buy health care and leave the rest in place. That would mean the federal government will still be free to impose most of these pernicious policies. The result will be the most significant wholesale federal intrusion into religious freedom in modern times. We should no longer tolerate taxpayer bailouts of billion-dollar abortion giants like Planned Parenthood. No responsible economic policy includes bailouts for big abortion.”

Leonard Nelson, a professor at the Cumberland School of Law at Samford University and author of Diagnosis Critical: The Urgent Threats Confronting Catholic Health Care, agrees that “the invalidation of the whole legislation is very unlikely, but it is more likely the court will declare the mandate unconstitutional and sever it, despite the lack of a severability clause.”

Back to the bishop’s main concern, Nelson said, “The most disturbing part of the legislation is the treatment of contraception as preventive care with the limited conscience clause. This include coverage of Ella, the drug with abortifacient properties. There is a narrow conscience clause, but it will not cover Catholic hospitals or other major Catholic institutions. Thus, unless they already had in place a self-insured plan, Catholic institution will have to provide contraceptive coverage without co-pays or deductibles. It applies to all insurance policies sold on and off the exchange as well as non-grandfathered self-insured plans.”

2012 Election

With every likely Republican nominee in the 2012 presidential election vowing to repeal the health-care law, a ruling that falls short of overturning the law would not mark a final political ruling.

Nelson believes the controversy over the health-care law is a real opportunity for Catholic health care in the United States. “If Obamacare is declared unconstitutional, then Catholic hospitals will probably have to provide more charity care,” Nelson predicts. “I would like to see Catholic health care more focused on serving the underserved. That is an essential part of their Catholic mission.

“In addition, under Obamacare, there is increased pressure on Catholic hospitals to consolidate their operations with non-Catholic providers to form larger organizations. This is due in part to payment reforms that provide incentives to reduce fragmentation in health and the significant capital investments that will be needed to form accountable-care organizations. As I noted in my book, it may be better for Catholic health care to be less focused on acute-care hospitals and more focused on alternative undertakings.”

Kathryn Jean Lopez is editor-at-large of National Review Online and a nationally syndicated columnist.

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