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Critical Condition

NRO’s health-care blog.

A ‘Tax on Pro-Life Conscience’



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That’s what Bioethics Defense Fund attorneys Nikolas T. Nikas and Dorinda C. Bordlee are calling the impact of today’s Supreme Court ruling on Americans who happen to oppose abortion. They answered some questions about just what they mean over e-mail this afternoon:

What does today’s health-care decision mean for the dignity of human life?

The dignity of human life is now under tremendous threat. Because Obamacare contains conscience-violating mandates concerning abortion and abortion-inducing drugs, this decision effectively imposes a tax on pro-life conscience. This is because the U.S. Supreme Court majority upheld the Obamacare law in its entirety under the unexpected reasoning that the “penalty” imposed on citizens who do not buy approved insurance is a “tax,” and thus legitimate under Congress’ tax and spend power. The dissent characterized the majority’s ruling as illegitimate “judicial tax-writing.”

How and why is abortion even a part of the president’s health-care law?

As we explain in our amicus brief to the Supreme Court, Obamacare contains an unconstitutional “abortion premium mandate” that could put millions of Americans into conscience violating situations where they will be required to pay out of their own pockets a separate premium that must be placed by their insurer into an allocation account designated solely to fund other people’s elective abortion. The Act explicitly says that no enrollees in plans that cover abortion can decline the coverage for reasons of age, sex or marital status. While the Amish are allowed to opt-out of Obamacare’s individual mandate, pro-life citizens are not able to opt out for reasons of moral objection to abortion. We argue that this is a classic violation of the Free Exercise Clause. So the Obamacare lawsuits on religious-liberty grounds are just beginning. This is far from over.

Why should we believe you? The president said differently. 

We read the law, and laid it all out in our Supreme Court amicus brief on behalf of seven medical organizations. We summarized our expose and the president’s word games here

Do you dismiss the care of people once they are alive? 

Actually, as advocates for the dignity of human life, we understand that unborn children are human beings who are indeed “alive” and entitled to special protection as the most vulnerable members of the human family. Authentic health care reform must be promoted and enacted in a way that the unborn, the elderly and the disabled are given the full protection of the law, rather than being treated as disposable at the government’s whim — whether by a politically appointed panel in Washington, D.C. or the bureaucracy of the HHS department.

As lawyers, what do you make of “judicial tax-writing” as you call it? 

We are baffled. But since we are not tax attorneys, we will simply let Justices Scalia, Kennedy, Thomas, and Alito speak for themselves in this quote from their dissenting opinion:

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.”United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

What’s your takeaway message to Catholics during the Fortnight of Freedom and all Americans as we approach Independence Day and, yes, a presidential election?

The takeaway message is that this is the beginning of the battle, not the end. The religious liberty suits against Obamacare’s HHS Mandate are now more important than ever, and readers may want to review BDF’s short comment letter to HHS pointing out how the alleged “accommodation” still requires material cooperation with evil, as well as the science behind the required drugs that are capable of terminating the lives of human beings at the embryonic stage of development. Readers may recall that after issuing the HHS regulation mandating employers to pay for abortion-inducing drugs and surgical sterilizations, Secretary of Health Kathleen Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” Indeed.

We would encourage Catholics and all citizens of good will to take this ruling as a challenge and an opportunity to stand up at this pivotal moment in our nation’s history to defend the human right to life and the conscience rights at the heart of religious liberty. We must not lose heart. As the U.S. Bishops Conference has requested, we must embrace this fortnight as our moment to demonstrate the depth of our moral and religious convictions — in our families, in our legislative bodies, in our courts, and in the voting booth. Catholics who follow the beautiful writings of Pope Benedict may remember that he said that those who act with love are “hope in action.” It is time for action, and we cannot and will not lose hope.



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