Last week’s Supreme Court arguments over the Affordable Care Act focused on the constitutionality of the individual mandate and the expanded Medicaid entitlement. Could those cases also affect the religious-liberty lawsuits challenging the HHS abortion/sterilization/contraception mandate, which are now pending in many federal district courts? The short answer is: Maybe.
The Supreme Court is expected to rule on its cases by the end of June. If the Court sides with the government — either finding that the plaintiffs came to court too early (under the Anti-Injunction Act) or that neither the individual mandate nor the Medicaid expansion violates the Constitution — then its decision will likely have no effect on the religious-liberty cases. Simply put, in that scenario the most the Court would be deciding would be that the statute survives the particular constitutional challenges it considered this week. The HHS mandate is a separate rule, and it is being challenged on grounds entirely different from those the Court considered this week. So even a 9–0 win for the government at the Supreme Court would not derail the religious-liberty cases concerning the HHS mandate.
What if the Court finds that some part of the health-care law is unconstitutional? That’s where the analysis gets more interesting. If the Court decides that the unconstitutional part of the law is “severable” — i.e., that the Court could invalidate just that part of the law but leave the rest of the law in force — then the ruling would probably not affect the religious-liberty cases.
But, if the Court decides that the entire statute needs to be invalidated, then the decision would be an immediate win for the religious-liberty plaintiffs. HHS only has authority to issue regulations forcing employers to pay for “preventative” care because of a particular provision in the health-care statute itself. If the Court invalidates that statute in its entirety, then the regulations HHS has issued under that statute would immediately be invalid too, because HHS would have no authority to issue the rules in the first place.
Is it plausible to think that the Supreme Court’s consideration of the limits on Congress’s enumerated powers or on its treatment of the states could have such a direct impact on the individual-liberty issues raised in the religious-freedom cases? Absolutely. The very reason the Founders imposed limits on Congress’s powers was to prevent the federal government from doing what it has done here: expand its reach at the expense of individual freedoms. Alexander Hamilton actually thought the federalism and separation of powers provisions in the original Constitution provided such strong protection for individual liberty that no Bill of Rights was needed at all. And this is a feature of our system that the current Court understands quite will. Just last Term, Justice Kennedy wrote for the unanimous Court: “Federalism secures the freedom of the individual. . . . By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” In so doing, Kennedy was actually picking up a theme he has worked into a variety of his opinions on federalism and separation of powers issues over the last two decades: that limitations on government are not just important for their own sake, but because of the ways in which they protect individual freedom.
If the Court views the Act through this lens, it may well think the best course is simply to invalidate the entire law, rather than force the nation to suffer through the piecemeal litigation and death-by-a-thousand-cuts for which the Act is otherwise surely headed.
— Mark Rienzi is senior counsel with The Becket Fund for Religious Liberty, and a professor of law at the Catholic University of America.