Obamacare Arguments Conclude – What Will Be The Impact on Religious Liberty & The Sanctity of Life?

BY CASEY MATTOX
POSTED MAR 30, 2012
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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.

If Obamacare falls, these provisions also fall. Hence, the intense interest from advocates for religious liberty and the sanctity of life, like ADF. In fact, ADF is presently involved in a number of cases trying to stop thesemandates and abortion subsidies from being implemented.

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.

AUTHOR: CASEY MATTOX

ADF Alliance Alert » news from the frontlines of the culture war: Thomas Messner: Justice Kennedy Shows How to Avoid Conflicts on Religious Freedom and Litigation Tidal Wave

ADF Alliance Alert » news from the frontlines of the culture war

The American Civil Liberties Union has won a legal round in its effort to overturn a Kansas law that restricts insurance coverage for abortions.

Judge sides with ACLU in Kan. abortion ruling

Mar 30, 2012 11:50am

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From NECN.com:

WICHITA, Kan. (AP) — The American Civil Liberties Union has won a legal round in its effort to overturn a Kansas law that restricts insurance coverage for abortions.

U.S. District Judge Julie Robinson sided with the organization by rejecting the state's request to dismiss a key challenge of the law based on equal protection. The ruling, handed down Thursday, allows the ACLU to continue pursuing its argument that the law illegally singles out women.
The Kansas law prohibits insurance companies from offering abortion coverage as part of general health plans, except when a woman's life is at risk. Patients who want abortion coverage must buy supplemental policies, known as riders, that cover only abortion.
The ACLU contends that the law discriminates against women, since men can buy full comprehensive coverage for all their health needs but women need to buy a separate policy to add abortion coverage. The organization contends the purpose of the law is to inhibit women from getting abortions.
That "argument gets closer to the heart of the issue — namely, whether the means used by the State of Kansas to further its interests, including its interest in protecting potential life, can be considered legitimate in view of the individual liberty" outlined in a previous U.S. Supreme Court decision, Robinson wrote. The judge was referring to a ruling that tried to strike a balance between the right of the state to protect a fetus and the right of a woman to terminate her pregnancy.
Robinson said the ACLU might be able to show at trial that Kansas imposed an undue burden by creating a substantial obstacle to a woman seeking an abortion.
The ruling provides a glimpse into the legal reasoning of Robinson, the federal judge in Topeka who is overseeing the case following the death of U.S. District Judge Wesley Brown in Wichita earlier this year.
Brown refused last year to block the law's enforcement, saying opponents failed to prove their claim that legislators' real intent was to create obstacles for women seeking abortions. But he also told the ACLU that it could try again, noting his decision wasn't a final ruling on the merits of the group's claims.
Women seeking an abortion in Kansas need to buy the insurance rider or pay for the procedure out-of-pocket if their insurance policies are new or were renewed after the law took effect last year on July 1.
The law was among several major anti-abortion initiatives approved by Kansas legislators and signed into law last year by Republican Gov. Sam Brownback, who called on lawmakers to create "a culture of life" after he took office in January 2011. Supporters of the insurance restrictions contended that people who oppose abortion shouldn't be forced to pay for such coverage in a general health plan.
In her ruling, Robinson said the U.S. Supreme Court had already made clear that the undue burden standard is the appropriate means of reconciling the state's interest in potential human life with the woman's "constitutionally protected liberty" to have an abortion. However, she noted that the high court has not yet fully clarified how to consider an abortion-related challenge under an equal protection theory, one of the key claims in the ACLU's lawsuit.
Robinson rejected the state's request for a partial judgment on its behalf, concluding that it must be determined at trial whether the "purpose or effect" of the Kansas law is to create an undue burden on the right to abortion.