July 6, 2012


The health care decision

Chief Justice John Roberts surprised everyone when he wrote the opinion that upheld the constitutionality of the Patient Protection and Affordable Care Act, also known as Obamacare. It was widely expected that, if the Supreme Court were to decide by a 5-4 vote, Justice Anthony Kennedy would cast the deciding vote.

It seems likely that Roberts was determined that the Court not seem to be political when making its decision, and we suspect that he tried to get Kennedy to go along with him so that the vote would have been 6-3.

If so, he failed because Kennedy said in a dissent from the bench that “there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States.” Therefore, he sided with the conservative justices, Antonin Scalia, Clarence Thomas and Samuel Alito.

It was a foregone conclusion, even before the decision, that this issue will feature prominently in the presidential and congressional campaigns between now and November, with Republicans promising to reverse Obamacare and the Democrats promising to keep it.

The Republican-controlled House of Representatives will try to repeal the law, but there is no possible chance of getting such legislation through the Senate. With the two houses so divided, it is difficult to see how anything will be accomplished between now and November.

With the law upheld, so is for the moment, the mandate from the U.S. Department of Health and Human Services (HHS) forcing employers with health care plans, including Catholic institutions, to include payments for abortifacients, sterilizations and contraceptives. HHS says that thse medicines and procedures are part of “preventative” medicine.

That means that the lawsuits that have been filed by 43 Catholic dioceses, schools, hospitals, social service agencies and other institutions, will have to go forward.

The good news is that, if those lawsuits eventually get to the Supreme Court, Justice Kennedy should be on the side of Alito, Thomas and Scalia, and Roberts should also be back on that side.

We hope, though, that the matter can be decided well before any of the cases get to the Supreme Court. It is not beyond the possibility that the Obama administration will change its mind about the mandate.

As Peggy Noonan, a Wall Street Journal columnist, said, “Anyone good at politics does not pick a fight with the Catholic Church during an election year.”

It is not beyond the possibility, but it is also not probable, because to do so would antagonize all those people, including most of the secular media, who have framed the battle as a war on women rather than over freedom of religion.

As soon as the Court’s decision on the health care law was announced, the U.S. Conference of Catholic Bishops issued a statement that emphasized that the bishops never joined in efforts to repeal the law in its entirety.

However, the bishops said, “The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct [the law’s] fundamental flaws.”

Those “fundamental flaws,” the bishops said, include abortion funding, conscience protection and immigrants’ access to health care.

If the law is not to be repealed, those flaws must be fixed through legislation.

But is it possible that the Republicans could repeal the law after the November elections? It seems unlikely because it would require the election of Mitt Romney as president, the defeat of at least 13 Democratic senators, the re-election of 10 Republican senators and the House of Representatives remaining in the control of Republicans.

Therefore, we believe, Congress must concentrate on trying to fix those flaws.

We are convinced that many of the legislators in Congress had no idea that the law provided the means for HHS to mandate that Catholic institutions must pay for abortifacients, sterilization and contraception.

Why not change that part of the law?

—John F. Fink

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