April 20, 2012


Awaiting the Court’s decisions

As everyone who pays even the minimum amount of attention to what is going on in our country knows, the U.S. Supreme Court will decide what is going to happen to the Patient Protection and Affordable Care Act, sometimes referred to as Obamacare. The court held a highly unusual three-day period of oral arguments for the case and will announce its decision late in June—probably on June 25, the last day of its 2011-12 session.

The decision could have an enormous impact on the religious freedom issue caused by the mandate of the U.S. Department of Health and Human Services (HHS) that health insurance plans must cover sterilization, contraception and abortifacients. Direct challenges to that mandate are in other court cases, but surely that issue will be in the minds of the justices when they decide the current case.

As we reported in an article in our April 6 issue, the high court will announce its decisions on four health-related questions argued before it on March 26-28:

  • Does the Anti-Injunction Act, which says no tax can be challenged before it takes effect, preclude court action on the Affordable Care Act at this time?
  • Does Congress have the power to force Americans to buy health insurance—the so-called individual mandate? This individual mandate is separate from the HHS mandate.
  • If the individual mandate is overturned, can other sections of the law remain in effect?
  • Can Congress require states to expand their Medicaid programs?

If the court decides that the act can be challenged and is unconstitutional, the HHS mandate will be nullified. If it declares the act to be constitutional, the mandate will stand—at least for the time being.

The basic issue in this case is how far the federal government can go to regulate the lives of individuals and institutions, including religious institutions. Can it command individuals to do specific things that they might not want to do? Can it insist that religious institutions do things that violate their teachings?

From the questions the justices asked during the oral arguments, it appears that many of them have problems with the individual mandate that requires everyone to have health insurance.

Justice Anthony Kennedy, for example, asked, “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 Constiution?”

And when U.S. Solicitor General Donald Verrilli argued that the government can require people to buy health insurance because everybody, at some point, will need it, Justice Samuel Alito commented that then apparently the government could also mandate people to buy burial insurance since everyone will die.

What happens, though, if the court declares the individual mandate to be unconstitutional, but tries to salvage the good parts of the law?

We know the position of the U.S. Catholic bishops regarding the mandate that Catholic institutions that provide health care programs must include contraception, sterilization and abortifacients even though that violates its teachings. However, the bishops do not oppose all parts of the Affordable Care Act.

The White House press secretary tried to dismiss the bishops’ opposition to the mandate by saying that the bishops always opposed health care reform.

New York Cardinal Timothy Dolan, who is president of the U.S. Conference of Catholic Bishops, quickly denied that, somewhat angrily stating that the bishops have long advocated in favor of universal health coverage as a matter of social justice. He called the remark “scurrilous and insulting, not to mention flat-out wrong.”

If the high court strikes down the entire law, that doesn’t mean that threats to religious liberty are over. The Obama administration seems intent on denying funding to Catholic agencies unless they fall in line with the administration’s agenda.

As we said in a previous editorial, other disagreements between the Catholic Church and the

Obama administration have concerned funding for abortion providers both overseas and in the United States, funding for embryonic stem cell research, placing children for adoption with same-sex parents, and taking grant money from the U.S. bishops’ Office of Migration and Refugee Services because it wouldn’t make referrals for abortions.

Congress tried to pass the Respect for Rights of Conscience Act, but the Senate tabled it.

Needless to say, all this will still be an issue in November’s elections.

—John F. Fink

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