Today, the Supreme Court wrapped up the third of its historic, back-to-back days of oral argument in DHHS v. Florida, the case that will decide the constitutionality of the Administration’s center-piece health care law. Monday’s arguments centered on the procedural question of whether the challenge to Obamacare can be dismissed on narrow tax-law grounds. But Tuesday presented considerable courtroom fireworks regarding the merits of the case, with Justice Kennedy – commonly considered to be a swing vote – lighting the fuse. He noted that the government might well have a “heavy burden of justification” to order all citizens to buy-into the federal health care plan or suffer penalties. Then Justice Kennedy added, in his initial volley of questions, that the new health care mandate would be “changing the relation of the individual to the government … in a unique way.” Yet, apart from these highly important issues of the breath-taking scope of the new health care mandate that purports to govern every citizen, and whether that scope is constitutional, there is an even more fundamental issue at stake – the right of religious conscience – one that is not strictly at play in this appeal and yet serves as a haunting backdrop.
In the original position taken by the Administration, only those religious institutions that provide services to their own faith group would be given any exemption from the provisions of Obamacare, which mandates the providing of contraception and abortion drugs to all citizens. Admittedly, the universe of those exempt religious groups would be very small. Excluded from conscience protection would be most, if not all, Christian charities – international relief groups, soup kitchens, social service ministries, food pantries, homeless shelters, drug rehab providers, bookstores, many Christian schools, crisis pregnancy centers, and the list goes on. After a fire-storm of controversy broke out, the Administration more recently announced that it would provide an “accommodation” to faith groups, though the policy has not yet been reduced to final form. In a press conference, President Obama announced that religious institutions like colleges or hospitals – while not being exempted from having their health plans include the morally objectionable services – would not have to pay for those services, instead shifting the responsibility to insurance companies to foot the bill. Of course, that makes the illogical assumption that insurance companies will not pass on the costs for morally offensive services to the Christian organization. Further, it does not solve the fact that Christian ministries would be forced to violate their conscience by being actively complicit in providing abortion drugs to the families of their employees. In the Annals of Congress dating back to the debates over the framing of the First Amendment protections of religious liberty, we find our Founders repeatedly articulating the intention to protect religious “conscience” from government interference. James Madison, our chief constitutional architect, more than once argued that true religious liberty means that the government cannot “compel” a citizen to violate his or her religious conscience. If Obamacare survives this round of appeals, there will be an even more fundamental religious freedom battle yet to come.
Senior Vice-President & General Counsel
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