Politics & Policy

Roberts Rules

It belongs to the democratic process to get Washington to work on repeal.

‘It feels like Justice Roberts cheated on me,” said a friend, half in jest, half in honest disappointment. A lot of similar sentiments were voiced in the wake of his penning the majority opinion that, as many have put it, “upheld Obamacare.”

But what the Court did isn’t entirely that, of course. The whole of the president’s health-care legislation wasn’t actually the question before the Court.

Reading the majority opinion in National Federation of Independent Business v. Sebelius, my mind went back to an April morning in 2008 on the West Lawn of the White House. Welcoming Pope Benedict XVI, President George W. Bush said:

In a world where some treat life as something to be debased and discarded, we need your message that all human life is sacred and . . . that “each of us is willed, each of us is loved, and each of us is necessary.” In a world where some no longer believe that we can distinguish between simple right and wrong, we need your message to reject this “dictatorship of relativism” and embrace a culture of justice and truth.

Admiring the Founders’ respect for religious freedom, the pope encouraged its preservation: “The preservation of freedom calls for the cultivation of virtue, self-discipline, sacrifice for the common good and a sense of responsibility towards the less fortunate. It also demands the courage to engage in civic life and to bring one’s deepest beliefs and values to reasoned public debate.” He presented freedom as a challenge for every generation, and quoted his predecessor on the always-looming danger of totalitarianism: “History shows, time and again, that ‘in a world without truth, freedom loses its foundation,’ and a democracy without values can lose its very soul.”

“Awesome speech,” President Bush said to the pontiff. So in sync were their worldviews, in ways that used to be conventional wisdom: Life and liberty are of Divine origin, and government exists for their protection. The speeches of the two leaders were perfectly complementary.

Thoughts about the man who appointed the chief justice and about the chief justice himself — I emceed a “Women for Roberts” press conference, live on C-SPAN, back in the day — led to thoughts about the democratic process itself.

“Elections matter,” a friend and colleague said to me near Pennsylvania Avenue that day. For many Americans, only recently has that realization begun to register in their hearts and minds. Leading up to Independence Day, the Fortnight for Freedom, which the U.S. Catholic bishops have called for to highlight the importance of religious liberty, has taken on an ecumenical character, as people of many faiths join in opposition to the idea that the Church’s convictions relating to abortion, sterilization, and contraception are not fit to be respected in the public square — or in the health-insurance plans provided by Catholic institutions or employers. Critics insist that U.S. Catholics and other Americans of faith would impose their views on the whole country. But it is the government that is doing the imposing, using the power of the state to coerce everyone to go along with its radical ideology, conscience be damned — or pay a fine on your faith for your supposed backwardness.

My friend’s declaration about elections is the point of a sentence in Chief Justice Roberts’s majority opinion: “It is not our job to protect the people from the consequences of their political choices.” Translated for our political season: This is what you voted for. I’ll strip it bare, constitutionally, but if you want it dead and gone, that’s your job, fellow Americans. That’s what elections are for. In saying that, he managed to expose the law to be what the president adamantly insisted it wasn’t: a tax bill.

As the Supreme’s Court’s health-care decision was being announced, a bipartisan group of congressmen (two women, two men) met at Georgetown University to discuss matters of conscience. Led by Nebraska congressman and Georgetown alumnus Jeff Fortenberry, they sought progress in the effort to protect conscience rights after the HHS mandate.

As framed by the architects of the policy, the controversy surrounding this unprecedented HHS mandate has played itself out in terms of contraception and a “war on women.” Obviously, it involves contraception. And abortion — don’t forget that. But the question before the court of the American electorate is not about contraception or any sectarian teaching but something quite fundamental and universal.

“For the first time in the history of health care in the United States,” Fortenberry said,

this law would force Americans to choose to either obey the government or violate their personal convictions. To stand for their deeply held beliefs, or stand convicted by government coercion. To choose between their conscience, or their livelihood. That is a false choice. It is wrong. It is unjust. It is unnecessary. It is un-American. And it is an affront to the very purpose of our government, derived from the consent of the governed.

The other day, an American journalist was appointed a senior Vatican communications aide. In conveying that news, a wire service reduced one of the most significant speeches of our time to this: a “now-infamous speech about Muslims and violence.” Much like the HHS mandate now, Benedict’s Regensburg lecture of 2006 was widely misreported. Its topic was, in fact, the topic that he and the president spoke about that day in April and that is at issue now for us: the future of freedom itself.

Once all of the dueling commentary, despondency, and celebrations pass, I’d rally around what the chief justice said. His ruling wasn’t so much disloyalty to the conservative cause as it was a fraternal nudge whose message is: Stay awake. Do your civic duty.

— Kathryn Jean Lopez is an editor-at-large of National Review Online. This column is available exclusively through Andrews McMeel Universal’s Newspaper Enterprise Association.


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