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Scott P. Richert

What the ObamaCare Ruling Means for the HHS Mandate

By June 29, 2012

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The U.S. Supreme Court decision upholding ObamaCare (while declaring it constitutional under Congress's power to tax rather than its power to regulate interstate commerce) has largely been greeted by Catholics with a shrug of their shoulders. The general attitude is summed up by Mark Shea: "the central issue (as far as I am concerned) remains to be tested: Catholic conscience and the damnable HHS mandate."

As much as I hate to disagree with my friend Mark, I'm afraid that yesterday's ruling means that the prospects for any compromise over, or outright reversal of, the Obama administration's contraception mandate are growing dim. As I pointed out in my first post on the Fortnight for Freedom, if all or most of the ObamaCare legislation had been declared unconstitutional, the HHS mandate would have fallen with it.

The flip side is that, now that ObamaCare has been found constitutional, the administration has received a political boost that it will use to press its case on the contraception mandate. Between now and the presidential election in November, President Obama has no need to try to compromise on this issue—and, indeed, any attempt at compromise that he might try to make would hurt his electoral prospects among those voters most in favor of both ObamaCare and the HHS mandate. Such voters are, in fact, the core of his support; he would be foolish to do anything to upset them now.

But it's not all up to the administration; the U.S. Supreme Court will eventually rule on the contraception mandate itself. (See The Contraception Mandate: The Church Fights Back for details.) Does yesterday's decision give us any indication how the Court will rule?

Directly, no. Indirectly, though, it may tell us a lot.

The best possible spin that can be put on Chief Justice John Roberts' decision in the ObamaCare ruling is that he has deferred to Congress and the administration. His own opinion makes it clear that, as the legislation is written, the ObamaCare individual mandate (the requirement that everyone must purchase health insurance) is unconstitutional. And yet Roberts, along with the four most liberal justices on the Court (Ginsburg, Breyer, Sotomayor, and Kagan), declared the legislation constitutional anyway, by finding another justification for the individual mandate in Congress's power to "lay and collect Taxes."

That tells us quite a bit about Chief Justice Roberts' understanding of the role of the Supreme Court, and it gives us some clue as to how he may approach the contraception mandate. The four justices who joined Roberts in his decision are likely to vote to uphold the HHS mandate, and of the remaining justices Anthony Kennedy (a Catholic) is shaky at best. If Roberts decides to defer to Congress and the administration, even if he has to bend over backward to do so (as he did in the ObamaCare ruling), the Court could uphold the contraception mandate by a vote of 5-4 or 6-3.

Some bishops who gave qualified support to the Obama administration's efforts at healthcare reform have, in the wake of the contraception mandate, expressed a sense of betrayal, and a few have even suggested that it may have been a mistake to support ObamaCare. Catholics who think that the two issues—the contraception mandate and the legislation that allowed the Obama administration to impose the contraception mandate—can be treated separately may be in for a rude awakening when the Court addresses the contraception mandate next term.

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June 29, 2012 at 12:31 pm
(1) paul michael says:

I may like to know more about this

June 29, 2012 at 12:41 pm
(2) Dee says:

I have never responded to articles online but feel obliged to do so now. As a Catholic and physician I am saddened that the only focus here is the issue of contraception. I do not pretend to be a theological scholar but I cannot help but remember my catechism classes when Jesus embraced sinners and was able to see the good in all. Are we so focused on our own agendas that the importance of healthcare and fairness for all is overlooked? Is taking care of our fellow human being no longer important? While the contraception mandate forces insurances to provide contraceptive care, it does not force the individual to make that choice. Is free will no longer a valid concept? Again, I am not here to provide insight into any of the above issues, but I am constantly discouraged by hatred in the form of religious teaching. “More wars have been fought in the name of God” than any other belief. I thought He was about love and understanding…

June 29, 2012 at 1:16 pm
(3) Ted Seeber says:

May I offer another possible interpretation? I agree with you that the possibility of compromise may be over. But that does NOT mean the Obama Administration has won, for the following three reasons:
1. The HHS Mandate is an interpretation of the law passed by Congress, it is NOT explicit in the ACA itself, anywhere.
2. The Department of Health and Human Services is not the IRS, and thus, the HHS Mandate cannot be described as a tax- and the recent Roberts Decision included a very strict definition limiting the commerce clause. Even so, the commerce clause refers to the power of CONGRESS, not the EXCECUTIVE, so goto step 1.
3. It would be extremely hard in court to prove that removing a woman’s fertility is health care. I realize the liberal definition of health care includes it, but that is not the same as saying that the evidence is conclusive. Therefore I think a good argument can be made that the HHS Mandate is a bad interpretation of the ACA simply because contraception isn’t care.

Crossposted back to Mark Shea’s blog

June 29, 2012 at 2:10 pm
(4) colleen carter says:

Very informative opinion. Thank you. I am sad about the medical profession if this goes the way of Canada. I am sad that we may not be able to work with the poor as a organized body. I am concerned about my sons that are working hard to run small business’s. Trillions of dollars in debt concerns me about the future. I really believe most people do not know the consequences. As for me I will never vote in a politician that claims health care is an abortion. I also believe society does not realize that abortion has its sad results later in life. As some women are voicing their rights for their own bodies and that is fine if it doesn’t mean harm to the fetus. What does our Heavenly Father think of over 5 million abortions.?

June 29, 2012 at 2:19 pm
(5) stacey says:

Response to Dee.You mentioned how Jesus ” embraced sinners and saw the good in all”. I don’t believe Jesus ever loved and embraced sin itself when he embraced sinners. Jesus loves all people even sinners as Jesus is love, however he does not love people’s sinful actions. The bible is full of examples of when the Lord was angered by people’s sin. You speak of fairness and taking care of our fellow humans. My elderly mother qualifies for medicaid as as her gross income is $200 per month and she does not have social security and medicare as she never worked in the USA. Under Obamacare medicaid will be cut as states will not be able to afford it so those on medicaid will just have to suffer at home or die if they become sick. Is this fair? The present system does give financial help to those that really need it. Obamacare is going to be too expensive and will have to make cuts in order to survive- and they already have it set up to cut medicaid in order to pay for what is on their agenda such as abortions and contraception. I guess the elderly and poor will just have to die at home when their medicaid is cut so irresponsible, amoral people can get abortions or indulge in sex and get free birth control even though is you are young enough to be having sex you should be able to get a job more easily than a 78year old who has no hope of getting a job to pay for life saving medicine. Does that seem fair? Is this our society taking care of others? By funding abortion and killing babies are we taking care of our fellow humans or are we enabling sin?

June 29, 2012 at 2:31 pm
(6) Diane says:

I am responding to Dee who beleives it is hateful to refuse women healthcare that can include contraception and abortion. As a registered nurse I could never ever work in a healthcare environment that provides abortions. Catholic and other Christian healthcare organizations are protected by the amendment of freedom of religion and are not to be mandated to perform or provide a service that is against their religious beliefs. To purposefully destroy human life now that is hateful, not in line with Christian beliefs and I am SURE our Lord and savior would agree. I just wonder if the womens right advocates would be as vehement in fighting against womens rights that are being violated by Sharia law as they are in upholding the right for women to murder their unborn child.

June 29, 2012 at 3:28 pm
(7) EKM says:

At what point is it not a sin to commit murder as in abortion?? The fetus is an alive breathing small human being!!!

June 29, 2012 at 3:29 pm
(8) Mary John says:

I am so disappointed to see some Catholics arguing here that some aspect of ‘good’ is enough to validate the evil aspects. The nature of temptation and the classical way the temptor has always worked is to mix the good in with the evil. That is what this Bill does. It would destroy personal decisions in medical treatment leaving them to Boards, which as part of institutions whose main concern is the bottom line care and costs, would not necessarily work for the best of patients. These Boards could even be used politically to get rid of political enemies or cost-inefficient care for elderly might mean assisted suicide basically for many older patients. Abortion and contraception have harmed so many people already, so even what seems like a small part of the bill is devastatingly evil. (think 50 + million abortion and many more via the pill) This is framed as ‘good’ but everything about it reeks of evil and loss of freedom and co-operation with the Devil himself. Wake up and realize what you do when you compromise good for evil!. Jesus Christ, Son of God, Have mercy on us!

June 29, 2012 at 3:48 pm
(9) gewisn says:

LIfe is life. There is no way to get around it. If something performs the functions of chemical respiration, then it is alive. Since only God can create life, the destruction of any life is a sin against God. There can be no other interpretation.
Therefore, it is unquestionably a sin to eat animals…or plants…or anything that was ever alive. Killing of trees to build homes is a sin. Using pesticides or even stepping on a bug is a sin. Using antibiotics to kill bacteria that God has permitted to enter your body … is a sin. In fact, bathing is primarily for the purpose of removing and killing microbes that cause odor and sticky film on our skin … so is a sin against God and must be stopped.
At some point, someone must stand up to prevent the death of untold trillions of bacteria Every Day.

Who will stand with me (though probably not near me)?

June 29, 2012 at 4:50 pm
(10) Larry says:

Dee, your error is the error that has been pronounced by the monopoly media in lockstep with the Obama administration. This is NOT an issue of contraceptives per se. This is an issue of the government forcing Catholic institutions to violate Church teaching by requiring them to pay for contraceptives in their health insurance programs. You talk about freedom of conscience, but those whose consciences allow for the use of contraceptives would not have those consciences violated by the Church refusing to provide them. The mandate, however, DOES violate the consciences of people who view contraceptives as an intrinsic evil by forcing them to provide contraceptives against their consciences.

June 29, 2012 at 5:50 pm
(11) gewisn says:

Larry is exactly right!
And since the Bible tells us how to properly keep slaves, it is also unacceptable for the government to force us to give up our slaves.

(but since slaves are property and not alive, they are permitted to bathe)

June 29, 2012 at 5:59 pm
(12) Zoilo says:

I would like to believe that the HHS mandate will be rejected by the US SC as the most fundamental freedom (of religion) is at stake. Now that CJ Roberts has proven his impartiality, he can make decisions in favor of conservative positions without being accused of towing the Republican political line. The easiest way to modify the mandate is to include a conscience clause in it that will allow individuals and organizations to refuse to comply completely with the mandate based on their religious beliefs.

Obamacare would have been rejected by CJ Roberts had it not been for the congressional taxation power provision as provided in the constitution. But the CJ made it clear in his opinion (decision) that it is not for the SC to decide if Obamacare is the right policy for Americans or not. It is up to the voters to decide that as elected officials who made the law can always be thrown out of office if the majority of voters so decide. Voters who are against Obamacare (including the HHS) can decide to vote for congressmen, senators, and president who will repeal it and make policies that will not violate God-given rights of Americans. We only have to go out and make our voices heard come November 6, 2012.

June 29, 2012 at 6:24 pm
(13) gewisn says:

Tax laws, parking ordinances, building codes, air quality regulations, and even criminal laws should “include a conscience clause in it that will allow individuals and organizations to refuse to comply.”

Zoilo is a Genius!
Under this reasoning, I can now do exactly as I please, and it becomes unlawful to stop me from doing exactly as I please.

Since my religion has a long tradition of murdering those who believe differently and taking their land (which our religion states belongs to us), I am hereby utilizing a “conscience clause” to refuse to comply with laws against such activities.
Zoilo, please step out onto your front lawn so that I can do to you as I please.

June 29, 2012 at 7:52 pm
(14) Kirt Higdon says:

Excellent analysis by Scott. And there is every reason to expect that more and more obnoxious HHS mandates will be on the way after the election – no matter who wins.

June 29, 2012 at 9:15 pm
(15) Chas says:

We have crossed a bridge. This Obama Care basically says if you have lost your ability to be a productive citizen, we will use our database to find you and through the algorithm of compassion we will authorize your exit through an inexpensive morphine dose. This is the logical outcome of a socialist evidence based system. Catastrophic Limit will have a new meaning. Everyone will have a sad goodbye for you for a few minutes, then move on to the next unfortunate that needs a compassionate, and affordable, exit.

June 30, 2012 at 1:36 am
(16) rick says:

Does the decision mean that the HHS mandate is dead? After all – if the penalties are taxes, then does this mean that Catholic entities can not be “taxed” due to their status? In other words, try and “tax” the church all you want, they do not apply.

June 30, 2012 at 4:47 am
(17) colleen golden says:

Hello” journalist”,

The legislation is called The Affordable Care Act.

You’re welcome.

Colleen Golden

June 30, 2012 at 6:37 am
(18) Scott P. Richert says:

Hello, “helpful person.”

The author is called a “Guide,” and the post is called “commentary.”

You’re welcome.

Scott P. Richert

June 30, 2012 at 3:04 pm
(19) Tom says:

Scott – If the Catholic Church disagrees with Obamacare then why is the Church not sending a clear and direct message to the paritioners to vote for someone other than Obama in November. Why not stop the complaining about the current administration’s policy towards contraception and take political action to change the political landscape in DC. Why is the church silent on this issue.

June 30, 2012 at 3:04 pm
(20) Tom says:

Scott – If the Catholic Church disagrees with Obamacare then why is the Church not sending a clear and direct message to the paritioners to vote for someone other than Obama in November. Why not stop the complaining about the current administration’s policy towards contraception and take political action to change the political landscape in DC. Why is the church silent on this issue.

June 30, 2012 at 8:00 pm
(21) Yossarian says:

Tom, the church can not come out and endorse a political candidate or it will lose it’s tax-exempt status. Then the church will have to beg for more money from it’s parishioners to pay off all those sex scandals.

June 30, 2012 at 8:02 pm
(22) Salvy says:

I think this once great country is doomed.

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