The Supreme Court Has Ruled. Now What?
By Susan E. Wills, Esq.
July 6, 2012
The U.S. Supreme Court's long-awaited ruling on two key provisions of the Affordable Care Act (ACA) was issued June 28. Few could have anticipated the outcome in National Federation of Independent Business v. Sebelius. The Court upheld the constitutionality of requiring individuals to enroll in a health plan—the linchpin of the ACA. Writing for the Court, Chief Justice Roberts upheld that requirement as a lawful exercise of Congress's constitutional authority to impose taxes.
Since the ruling was announced, it has been all but impossible to turn on the television or radio or go online without hearing a reporter, pundit, expert, talk show host or caller raise some question about the Court's decision: It's all guesswork wrapped in speculation inside a conjecture.
The Chief Justice's rationale for upholding ACA's individual mandate is of less immediate concern than the law's serious deficiencies on religious liberty and rights of conscience.
Here is a brief reminder of what's at stake:
Under the Act's mandate for including "preventive services" in most health plans, HHS and two other federal agencies are requiring most employers, including Catholic and private organizations, to fund and facilitate sterilization, contraceptives and abortifacients against their conscience. Individuals with a conscientious objection to such coverage are similarly impacted. To date about two dozen lawsuits have been filed to challenge the infringement upon religious liberty that this rule creates -- and none of these suits is undercut by the Court's decision to uphold two other specific provisions of the Act.
ACA allows for the direct funding of abortion through $11 billion that the Act allocated for community health centers, by an avenue that bypassed the usual appropriations bills and hence evaded the Hyde amendment against funding abortion.
Unless a state enacts "opt out" legislation, all individuals purchasing a plan that includes abortion coverage are required to pay a separate premium to cover the cost of other people's abortions. Under the Act, all but one plan on each exchange may cover elective abortions, and lower-income enrollees may receive tax credit subsidies to purchase these plans. To date, less than one-third of the states have enacted such opt-out laws.
ACA fails to prevent governmental bodies under the Act from violating the conscience right of providers, businesses, health insurers and enrollees who refuse to be involved in abortion.
And there are other manifestations of ACA's abandonment of longstanding federal policies on conscience rights. Recall the discovery last summer that HHS had given initial approval to at least three state programs for "high risk" insurance pools that would have allowed federal funding for abortion coverage. This approval was subsequently rescinded by HHS only after political protest. ACA reportedly contains over 1,000 instances where HHS "shall" or "may" take some regulatory action or where it is empowered to "determine" something.
Corrective legislation—the "Respect for Rights of Conscience Act" (H.R. 1179, S. 1467) and the Protect Life Act (H.R. 358, S. 877)—has already been introduced in Congress, and H.R. 358 has already passed in the House. Learn more about these bills at www.nchla.org and www.usccb.org/conscience.
In his homily at the July 4th Closing Mass of the Fortnight for Freedom, Archbishop Charles J. Chaput, OFM Cap, exhorted all Catholics, Christians and people of good will: "We live in a time that calls for sentinels and public witness. … You and I are responsible for this moment. Today. Now. We need to 'speak out,' not only for religious liberty and the ideals of the nation we love, but for the sacredness of life and the dignity of the human person – in other words, for the truth of what it means to be made in the image and likeness of God." So let's get to work!
Susan Wills is Assistant Director for Education & Outreach, United States Conference of Catholic Bishops' Secretariat of Pro-Life Activities. To learn more about the Catholic bishops' activities on conscience protection, visit www.usccb.org/conscience.