Politics & Policy

Obamacare in Court

Justice Anthony Kennedy
How Obamacare threatens Justice Kennedy’s grand abortion compromise

The Supreme Court heard the recent Obamacare cases during the last week of spring training, and the government swung for the fences. In the HHS-mandate challenges brought by the owners of Conestoga Wood and Hobby Lobby, the Obama administration asked the Court to construe abortion and birth-control “rights” so absolutely that the government can force people who object to buy those things for other people.

But the administration’s bold swing might end up as a pop fly to shallow left field.

The administration and abortion advocates insist that Conestoga and Hobby Lobby are about women’s rights, not religious freedom. This claim is strike one against the administration.

#ad#Nearly 50 years ago, the Supreme Court, in Griswold v. Connecticut, created a “right to privacy” in the matter of contraception, and then eight years later, in Roe v. Wade, extended it to include abortion, even though those activities are not mentioned in the Constitution. Yet the Court never suggested that private citizens could be forced to buy things for other people.

This leads to the administration’s second strike: trying to convert privacy “rights” into a mandate that forces citizens to participate in these activities. Roe v. Wade actually defended the conscientious right not to collaborate with abortion. After all, the very idea of a “right to privacy” is undercut if some people can be forced to participate in other people’s “private” actions.

But the climax of the administration’s at-bat in this case features “Mighty Casey”:  Planned Parenthood v. Casey, that is.

Justice Kennedy’s 1992 plurality decision depicts itself as a compromise. It declined to overturn Roe v. Wade, but it also placed significant limits on the underlying “right to privacy” itself.

That “right” was clarified as not being absolute — not even close. The government can significantly regulate certain practices, like abortion, and the government is under no obligation to fund abortion or birth control.

This is where the Obama administration and Planned Parenthood tried for a grand slam. Abortion advocates were unable to roll back Casey in the partial-birth-abortion lawsuits a few years ago, so they tried to do it through Obamacare.

In Conestoga and Hobby Lobby, the administration and its supporters argued that a woman’s “right” to abortion and birth control is so supreme that it trumps religious freedom, a compelling interest enshrined in the First Amendment and reaffirmed in the Religious Freedom Restoration Act.

Under the administration’s unswerving view, it can force people to buy abortion and birth control for others, and anyone who objects is inflicting “third-party harm.”

But the administration’s theory would overturn Casey and absolutize the “right to privacy.” If the rights to abortion and birth control are so all-encompassing that you can be forced to buy those things for other people, then nothing is left of Casey’s compromise.

It logically follows that if private persons must provide abortion and birth control for others, then the government also has to do so through tax dollars. Planned Parenthood clamors for such mandatory funding every year, and the American people consistently say no.

An absolutist right to privacy would not tolerate even common-sense restrictions on abortion like parental-consent rules and measures to protect women’s safety. If this “right” is elevated to a compelling interest that trumps religious freedom, then Casey’s “undue burden” test would become infinite and would end up striking down laws Casey itself and later cases upheld.

The administration’s real Obamacare argument is a bid to immortalize unfettered abortion on demand. But the administration might have gotten caught dreaming about its home-run lap.

At oral argument, Justice Kennedy asked the solicitor general whether his position was that people “could be forced in principle to pay for abortions.” The government attorney hemmed and hawed and finally had to admit, “You’re right.” Strike three.

— Dorinda C. Bordlee is senior counsel of the Bioethics Defense Fund, a legal organization that filed an amicus brief in the HHS-mandate cases on behalf of the Breast Cancer Prevention Institute documenting the cancer and other health risks of the mandated contraceptives.

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