The Corner

Health-Care Law’s Religious-Liberty Threat Remains

Kyle Duncan from the Becket Fund reads the state of the religious-liberty debate in regard to the Department of Health and Human Services Obamacare contraception, sterilization, and abortion-inducing drug mandate in the wake of today’s Supreme Court decision.

KATHRYN JEAN LOPEZ: Do the religious-liberty threats surrounding the president’s health-care law remain?

KYLE DUNCAN: Yes! Today’s decision was about two entirely different issues: whether the command to individuals to purchase health insurance (the “individual mandate”) was within Congress’ power, and, separately, whether the expansion of Medicaid was an unconstitutional coercion of the states. The justices took great pains to emphasize that the decision was limited to those precise legal questions and left other questions about the constitutionality of other provisions unresolved. The religious-liberty violations in the HHS mandate were never part of today’s case, and so the Court couldn’t have ruled on them even if it had wanted to.

This means that lawsuits against the HHS mandate are unaffected and will continue, at full speed.#more#

LOPEZ: Did the Supreme Court just make the religious-liberty lawsuits pending against the HHS contraception, sterilization, and abortion-inducing drug mandate much more important?

DUNCAN: Yes! Those multiple lawsuits — the number of which has now climbed to 23, on behalf of over 50 plaintiffs, pending in federal courts in 14 different states — remain the key outstanding challenges to regulations issued under the Affordable Care Act. If anyone wants to know why the Affordable Care Act puts individual liberty in jeopardy, in other words, they need look no further than these cases.

But there’s more. Today’s decision contains two key quotes that signal that the Court may be willing to strike down the HHS mandate as a violation of religious liberty, when it gets the chance. 

The first, from the majority opinion (p. 40), states: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.” In other words, Congress may have authority to penalize organizations that refuse to comply with its mandates; but any penalty will be struck down if it violates “other requirements in the Constitution,” such as the First Amendment-which is just what the HHS mandate does.

The second quote, from Justice Ginsburg’s opinion (p. 29), is even clearer: “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.” Again, that is just what the HHS mandate does: It “interfere[s] with the free exercise of religion” by forcing religious organizations across the country to violate their religious beliefs.

So, not only does today’s decision make clear that the Affordable Care Act is still subject to specific challenges. Indeed, if anything, it suggests that the Supreme Court is willing to entertain arguments that the HHS mandate violates the right of religious liberty.

LOPEZ: Do you worry that people will become less interested in the religious-liberty lawsuits, especially as coverage misleading suggests the Supreme Court ruled on the whole of the president’s health-care law and found it Constitutional?

DUNCAN: Not if we do our job properly. It will require carefully explaining what the Court did and didn’t do. The Court today simply decided that Congress had the power to “tax” people in order to encourage them to get health insurance. But that’s all. The Court only decides those issues that are before it in a given case. But this decision clearly leaves the door open for challenges to other provisions of the law — like the HHS mandate — that violate other provisions of the Constitution or other protections in federal law.

The Becket Fund brought the original four lawsuits against the HHS mandate, and many others have followed suit. These critically important challenges will now continue and, we hope, result in a groundbreaking decision on behalf of individual liberty and religious freedom.


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