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 these mandates 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:
1.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.
2.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).
3.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.