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Craig Parshall, General Counsel


“Obamacare” Case: What Is Missing

November 21, 2011

On Monday, the U.S. Supreme Court agreed to hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA – commonly called “Obamacare”), the Administration’s controversial national health care plan. There are plenty of issues that will be addressed, including whether the plan’s mandate that every citizen participate, or suffer punishment, can be justified under either the Constitution’s Commerce Clause or the provisions enabling Congress to “lay and collect taxes.” Also in the dock: whether any illegality in that part will nullify the whole law, and even whether the entire case is premature. But very likely the High Court will not reach a fundamental civil liberty concern – that the Act violates the religious liberties of individual citizens and faith-based organizations. Two weeks ago the House Subcommittee on Health heard testimony that Obamacare would require faith-based social service entities to violate their moral and religious beliefs by requiring them to have plans, or to provide services, that would cover contraceptive drugs that can be used for abortion, as well as insuring pro-abortion counseling.
While there is a semblance of a religious exemption in the plan, here is my diagnosis: it is desperately anemic. It will only protect those religious facilities that limit their services only to those of their own faith. While charitable religious organizations often hire from within their own faith group, their services are almost always offered to the public at large. As a result, as Jeanne Monahan from Family Research Council has stated: “religious groups that provide social services … religious health care providers and individuals in such health plans are not protected.” This is one more example of a growing legal dilemma: broad government regulations that collide with individual religious liberties, and end up crushing them underfoot. Let’s hope and pray that if Obamacare does survive this round of challenges, that the First Amendment defects will eventually be corrected – and soon. If not, I see more of our fundamental religious freedoms being rushed into the ER with a note attached: Do Not Resuscitate.