The Supreme Court has concluded its three days of arguments on the constitutionality of Obamacare, and I had the privilege of being present for some of the arguments. To my knowledge the words “religious freedom” or “abortion” were not mentioned. Yet, the Court’s decision will have enormous implications for these fundamental questions.
The Court’s attention was trained on the “individual mandate,” the requirement that every citizen purchase a health insurance plan containing everything Washington’s bureaucrats think should be included. But from that mandate springs a variety of other mandates that threaten religious freedom and the sanctity of human life. These include taxpayer subsidies for elective abortion in health insurance exchanges, the abortion coverage mandate (requiring that government subsidized health plans that cover elective abortion will charge an additional abortion fee for those services) and the secrecy clause which ensures that public advertising about these plans will not indicate that they carry an additional abortion fee until you are already in the enrollment process. It also includes the HHS anti-conscience mandate which requires religious employers to provide their employees with coverage of abortion pills, contraceptives and sterilizations in violation of the religious employer’s conscience and First Amendment rights.
As the week began, the simplified path to invalidation of the numerous violations of religious freedom and taxpayer subsidized abortion in Obamacare was as follows:
Monday: The Supreme Court decides that Obamacare’s individual mandate is not a tax making it not subject to the Anti-Injunction Act and giving the Court jurisdiction to rule on its constitutionality now.
Tuesday: The Supreme Court decides that the individual mandate exceeded Congress’s authority to regulate interstate commerce under Article 1, Section 8 of the Constitution (and isn’t authorized by any other Congressional power).
Wednesday: The Supreme Court decides that the unconstitutional individual mandate cannot be “severed” from the remainder of the law and thus not only the mandate but the entire law must be declared unconstitutional.
Were a majority of the Supreme Court to reach all three holdings then the taxpayer subsidies of abortion and frontal assaults on religious freedom would be eliminated. Prior to this week the conventional wisdom was that it was unlikely that the Court would invalidate the entire law. The conventional wisdom seems to have changed.
It now seems very possible that a majority of the Court will declare the entire law unconstitutional. With the caveat that a Justice’s questions do not necessarily reveal how they will vote, observers are in apparent unanimity that the Court will hold that the mandate is not a tax and it therefore has jurisdiction to determine its constitutionality now. As to the second and third steps the outcome is somewhat less clear. However, it was apparent from Tuesday’s argument that the majority of the Court was deeply troubled by the individual mandate and the Administration’s difficulty to provide any meaningful way to limit its expansion of government power. Few who witnessed the arguments would be surprised if the individual mandate is declared unconstitutional. Finally, it appeared on Wednesday that a majority of the Court might also be willing to take the third step and invalidate the entirety of the law – including its tax subsidies for abortions and unprecedented violations of religious freedom. However, at least as to the constitutionality of the individual mandate and its severability the Court seems likely to split 5-4 either way. Actually predicting the Court’s votes based on the questions from the Justices is perilous. But after witnessing the arguments the possibility of the Court striking down not only the individual mandate but the entire law seems much more real.
The Court will likely take a preliminary vote on the constitutionality of Obamacare behind closed doors at its Friday conference and then begin the process of opinion drafting that will probably culminate in a decision on or near the last day of the Court’s term in late June. For advocates of religious liberty and the sanctity of life, this week’s arguments provided an indication that this law which has been the source of so many threats to these paramount interests may be in serious jeopardy.
I am an Air Force Veteran of the Cold War and the First Gulf War (Operation Desert Storm). I live on a wooded hilltop with my two rescued dogs, Yogi and Ranger, and two rescued cats, White Sox, and Mittens. We share my land with several deer, a family of red-tailed hawks, a barn owl, numerous squirrels (that my dogs and the cat tree together), a family of pileated woodpeckers and numerous cottontail rabbits, and an occasional opossum or raccoon.