Happy Second Birthday; Some Hope There Won’t Be a Third
Friday was the second birthday of the Patient Protection and Affordable Care Act, but the bill may not see a third if the Supreme Court strikes it down after hearing arguments on the act’s legality this week. At least, that’s what Doug Carlson of the Southern Baptist Ethics & Religious Liberty Commission hopes will happen.
“The Department of Health and Human Services (HHS) issued a rule requiring that, under state health care exchanges, every enrollee in these insurance plans must pay a $1 surcharge directly into an account for abortions,” Carlson said. This comes after a January HHS directive that would require most religious employers to provide free contraception and other controversial reproductive health services in their insurance plans caused a political and religious fury.
Yale Legal Scholar Says Act Will Survive Supreme Court Scrutiny
But it would be “remarkable” if the Supreme Court struck down the act’s individual mandate to purchase health insurance and “revolutionary” if it struck down the act’s “extension of Medicaid to increase coverage for the poor,” Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, said at The Atlantic. Overturning the medicaid expansion would “throw into doubt the way that modern federal government works with states and it would jeopardize many popular social programs,” Balkin said.
Projected Employer Insurance Dump Could Reduce Deficit
The Affordable Care Act will cause a lot of employers to “dump people on government-run exchanges to get them off their neck,” Philip Klein, senior editorial writer for The Washington Examiner, said in an interview with CBN News. But a new Congressional Budget Office report “argues that dramatic increases in employer dumping could reduce, not expand, the deficit,” Forbes “Apothecary” blogger Avik Roy said in a post at The Atlantic. In another post, Roy said the idea that the U.S. health-care system is predominantly a free-market one is a myth. “In reality, per-capita state-sponsored health expenditures in the United States are the third-highest in the world, only below Norway and Luxembourg. And this is before our new health law kicks in.”
President’s Standing With Catholics in Jeopardy
Nonetheless, the campaign of religious conservatives against the act “is taking some toll on the president’s standing with Catholics,” The Washington Post reported. The article cited a new survey from the Pew Forum on Religion and Public Life that found “the percentage of white Catholics who said the Obama administration is unfriendly toward religion has nearly doubled since 2009, from 17 percent to 31 percent” and, among all Catholics, the percentage rose from 15 percent to 25 percent.
Republicans Have Troubles of Their Own
Republicans have problems with their own alternative to the president’s plan, however. On Thursday, House Republicans “voted to eliminate language in their healthcare reform bill that said the U.S. healthcare industry affects interstate commerce, which Republicans feared could undermine their argument that the Democrats’ 2010 healthcare law abused the Commerce Clause of the Constitution,” The Hill reported.
Prayer Rallies Left and Right
On Friday, pro-life groups held rallies in cities around the country to protest the “unjust violation of our religious liberty by the Obama Administration’s contraception, sterilization and abortion-inducing drugs mandate” and, on Sunday, they surrounded the Supreme Court building to pray “that justice may be done in these proceedings” and that “the religious freedom and freedom of conscience will be respected, that there will be no taxpayer subsidizing of abortion, and that the US Constitution will be honored.”
Today religious supporters of the act who want to “help people of faith move beyond cable news interpretations of health care reform” will follow suit by encircling the Supreme Court for prayer during oral arguments. According to The New York Times, their plan originated in the White House earlier this month.
As someone who joined the ranks of the uninsured this year for the first time in my adult life, I’ll be watching debate about the Affordable Care Act closely. I don’t know what the best solution is to the problem of unaffordable health insurance, but like an increasing number of Americans, I need one.
What do you think?
Do you want to see the Patient Protection and Affordable Care Act enacted or overturned?
COURSE CORRECTION: President Obama and Secretary of Health and Human Services Secretary Kathleen Sebelius during their Feb. 10 announcement of a compromise on the contraception mandate. The compromise was a response to the concerns of religious organizations that believe contraceptives violate their religious faith. (Photo: Joshua Roberts/Newscom)
Last week, President Obama, along with Department of Health and Human Services Secretary Kathleen Sebelius, unveiled a compromise agreement for implementing the Patient Protection and Affordable Care Act (ACA). The president, of course, had been getting hammered by both his political friends and foes following a decision to not exempt faith-based organizations (other than houses of worship) from a condition in his healthcare reform requiring employers to cover their employees’ contraception costs.
The Obama administration claims that the compromise balances “individual liberty” and “basic fairness.” Individual liberty here refers specifically to religious liberty claims, especially those made by religiously affiliated organizations like Catholic Charities, hospitals, and universities. Basic fairness, by contrast, signifies groups like Planned Parenthood, NARAL Pro-choice America, and other advocates who argue that a woman’s wellbeing hinges upon access to comprehensive reproductive healthcare, including contraception. The latter group further maintains that access to such care reduces health-care costs. Opponents generally concede the cost point, but balk at the idea that religious employers should be legally required to pay for or directly provide contraceptive services, an activity which contradicts papal doctrine within the Catholic Church.
President Obama’s compromise predictably attempts to solidify support from progressive Catholics and blunt the “war on religion” critique of political conservatives. Yet another question remains: how did Obama, who received an honorary degree from the University of Notre Dame, so thoroughly misjudge the objections of his supporters, particularly Catholic ones?
One possible account is that Obama failed to gauge the consequences of implementing ACA based on a narrow definition of religious employers. Justice in healthcare markets is not simply a question of who gets coverage, of what sort, and who pays for it. It’s also about the moral significance and legal scope of religious exemptions from mandates within ACA. Under what circumstances are religious groups exempt from laws which bind other organizations? More pointedly, what exactly constitutes a religious employer?
Does it refer exclusively to houses of worship or are religiously affiliated colleges, universities, and social service agencies included? The Obama administration chose the “house of worship” definition, presumably thinking they arranged an acceptable balance between liberty and fairness. The immediate and intense response to their decision convinced the administration that their restrictive definition was perceived not as an attempt to ensure that all recipients of taxpayer dollars play by the same rules, but as an attempt to force religiously affiliated employers to pay for coverage that violates their religious convictions.
I doubt that the administration intentionally sought to marginalize religious liberty in implementing the new healthcare law. Obama, after all, is a Christian who, as he notes, started working in Chicago as a community organizer, paid by the Catholic Church to mobilize Catholic parishes. It would seem odd to undermine the religious liberty of the organization which helped refine his sense of public service.
Nevertheless, the administration apparently neglected to sufficiently consult the fragile coalition that made his ACA possible in the first place — one thinks of Catholic Health United, columnists like the Washington Post’s E.J. Dionne, and others.
In 2008, President Obama campaigned as an individual change agent who could transform partisan politics and the machinery of public administration. The reality is that, more often than not, politics is a reactive enterprise of elected officials issuing then clarifying public statements; implementing laws, then revising that process in response to organized money, organized people, and organized voices.
Obama initially struck the wrong balance between religious liberty and access to preventive healthcare, giving due attention to the latter principle and insufficient attention to the former. To his credit, he listened and corrected his misjudgment.
When the government upholds an important principle and simultaneously shortchanges the civil right to freely exercise religion, it is the responsibility of religious groups to petition the government for a redress of grievances. That responsibility, after all, is also a civil right.
It’s been a monumental month in United States Supreme Court religious liberty decisions. First the court decided against hearing the Bronx Household of Faith’s appeal of a New York City Board of Education policy banning worship in public schools. Now the court has ruled that a teacher who taught religious classes at a Lutheran school was not protected under anti-discrimination employment laws because religious bodies have a right to hire and fire ministers as they see fit.
The Most Significant Decision in 20 Years
The New York Times reported that the Lutheran school decision may be the “most significant religious liberty decision in two decades” because, for the first time, it “recognized a ‘ministerial exception’ to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.”
The case against the school was brought by Cheryl Perich, who spent 45 minutes each day on religious instruction, but “was a ‘called’ teacher who had completed religious training and whom the school considered a minister.” The school said it fired her for pursuing litigation against it in violation of church teaching, The Times reported.
In an op-ed at CNN.com, the attorney for Hosanna-Tabor Evangelical Lutheran Church and School said the decision was “a huge win for religious liberty.”
“Churches do not run the government, select government leaders, or set criteria for choosing government leaders. And government does not run the churches, select religious leaders, or set criteria for choosing religious leaders. The Court unanimously reaffirmed that principle on Wednesday,” said Douglas Laycock.
At USA Today, University of Notre Dame law professor and associate dean Thomas Messner said the ruling affirmed the “foundational principle” that “in a constitutional democracy like ours, secular governments lack the power to resolve religious disputes, to answer religious questions, or to select religious ministers.”
What About Sexual Abuse Reporting?
The Los Angeles Times reported that “lower courts have long recognized that churches are protected from lawsuits involving their internal workings.” But The New York Times noted that “at the argument in October, some justices expressed concern that a sweeping ruling would protect religious groups from lawsuits by workers who said they were retaliated against for, say, reporting sexual abuse.”
“Chief Justice Roberts wrote that Wednesday’s decision left the possibility of criminal prosecution and other protections in place. ‘There will be time enough to address the applicability of the exception to other circumstances,'” The Times reported.
Peyote, Polygamy, and “Internal Church Decisions”
At Spiritual Politics, Religion scholar Mark Silk said, “The big deal is that two decades ago, the Court substantially undermined the constitutional right to free exercise in Employment Division v. Smith (1990), a 6-3 decision written by Antonin Scalia that held that two Native American drug counselors could not go to federal court to claim a religious right to sacramentally ingest peyote as part of their membership in the Native American Church.” The Smith decision referred back to an 1878 decision in which the Supreme Court “turned down the Mormon claim to have a free exercise right to polygamy,” Silk noted.
“Maybe ingesting peyote is an outward physical act distinguishable from being employed or not employed as the result of ‘an internal church decision that affects the faith and mission of the church itself.’ But anyone who knows anything about Mormon theology knows that the LSD Church’s embrace of polygamy–‘plural marriage’–was an internal church decision that affected its faith and mission profoundly. … The bottom line is that, having been forced by the Justice Department to confront Smith directly, the conservatives on the Court significantly walked the Scalia doctrine back,” Silk concluded.
More Pastors Protest Eviction from NYC Public Schools
Meanwhile, reaction to the U.S. Supreme Court’s other big religion decision regarding worship in New York City public schools continues to heat up. Thursday, 13 pastors and 30 lay people were arrested as they held a prayer rally at Mayor Michael Bloomberg’s State of the City address, according to A Journey Through NYC Religions. The New York Times barely noticed.
What Do You Think?
Are these decisions good for religious liberty or do some of their implications concern you?