May 30 2012
Last week, 43 Catholic institutions filed 12 lawsuits against the Obama administration for violating the First Amendment’s provisions protecting religious liberty. The lawsuits challenge Health and Human Services regulations allowed under Obamacare that would force all healthcare plans to cover sterilization and FDA-approved contraceptives. Catholic doctrine holds that contraception and sterilization are morally wrong. Under the new regulations, institutions and individuals who are morally opposed to contraception and sterilization—not just Catholics--are forced to violate their religious beliefs under threat of law:
According to the Archdiocese of D.C.’s website, preservereligiousfreedom.org:
The HHS mandate that all employers provide abortion-inducing drugs, contraceptives and sterilization includes only a narrow exemption for certain organizations that the government deems sufficiently “religious.” … This exemption runs contrary to decades of federal laws that have consistently honored and respected the conscience rights of religious institutions and individuals. . . This radical and narrow definition of what constitutes a “religious employer” attacks religious freedom by defining it away: by extending religious freedom protection only to houses of worship, HHS’s exemption reduces religious freedom to the freedom of worship.
This is just an example of the many threats to individual liberty within Obamacare. Expect many more lawsuits if Supreme Court allows Obamacare to stand in some form or another.
Most court watchers believe that the Supreme Court’s ruling on the constitutionality of Obamacare will be released in the next few weeks, before the Court’s 2011-2012 term ends at the end of June. If the Court invalidates the individual mandate, but allows the law’s other provisions to stand, there is no doubt that there will be a substantial increase in lawsuits challenging any remaining provisions of Obamacare, prolonging uncertainty and burdening the judicial system for years to come.
However, the only way to clear up uncertainty regarding the scope and application of Obamacare is for the Court to invalidate the entire law. The Court will have to find that the individual mandate is not only unconstitutional, but so vital to the legislation as a whole that without it, (1) Obamacare does not achieve its intended effect and (2) Congress would not have passed the remaining provisions on their own. The challengers made excellent arguments supporting this view before the Court, and even the government itself argued the essentialness of the individual mandate to Obamacare before abandoning that argument later in the course of litigation.
The job of the legislature is to pass laws, and the judiciary to interpret those laws. Congress forced Obamacare--a hastily and poorly drafted unconstitutional monstrosity—on the American people, and now the Court has the task of sorting out Congress’ mess.
If the Court holds that the individual mandate unconstitutional, then Court does not have the Constitutional authority to pick and choose what provisions of Obamacare remain. Congress’ failure to include a severability clause means the Court has no instruction from Congress on how to proceed if the individual mandate is unconstitutional. Whatever decisions the Court would make regarding what provisions stand and what is invalidated would encroach upon Congress’ duties and would, in effect, be the judiciary exercising a power exclusively granted to the legislative branch. This would be just as big a threat to the Constitution as if the individual mandate itself was allowed to stand.
I certainly hope that the Court takes the simpler and constitutional approach by striking down the individual mandate, and along with it, the entire Affordable Care Act.