Mandatory contraception provision may upend national health care law
By Bruce Kesler
ENCINITAS — The mandate by the Obama administration that contraception must be provided by religious hospitals even if contrary to their religious doctrine may influence the Supreme Court’s decisions on ObamaCare.
On a fundamental level, the mandate exhibits the intrusiveness of Obamacare into aspects of private belief, its practice, and freedom of choice. This is at the heart of the portion of the Supreme Court’s deliberations into Obamacare’s individual mandate to buy medical insurance or be fined. The issue is whether Congress exceeded its federal powers.
The intrusiveness of the individual mandate into private rights may or not be held by the Supreme Court to be inextricably linked to whether all or some of ObamaCare should be struck down. The Obama administration brief says that only the guaranteed enrollment and community-rating provisions of ObamaCare may be affected. However, the contraception mandate under the Obamacare requirement to provide preventive and wellness care exhibits the wider impact of Obamacare’s intrusion into private choices.
Until the hearings it cannot be known whether contending counsel will raise the issue of the contraception mandate or whether a Supreme Court justice will. Still, it is reasonable to suppose that it will be on the minds of one or more Supreme Court justices in reaching their decisions.
It has been pointed out that six of the nine Supreme Court justices are Catholic. It is speculative as to how that may affect their judgments. It is interesting to note, however, that a Jewish justice, Elena Kagan, concurring (with justice Alito) to the unanimous decision in the Hosanna-Tabor case upholding the “ministerial” exemption from EEOC. She said “…-it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws.” Although the Hosanna-Tabor case entails differing discrete matters of law, Kagan’s expressed understanding there of a correct limit to federal power may be reflected in her or other justices’ considerations.
The Supreme Court has waffled back and forth on whether there should be a dividing line between faith and practice, most recently finding for a division if there is a compelling state interest. The Obama administration’s argument, in both the ObamaCare hearings and in the contraception mandate, is that there is a compelling state interest in intruding into the choices of private people or entities. The Hosanna-Tabor decision may indicate that the majority of Supreme Court justices will find otherwise.
The contraception mandate cannot have helped the case for ObamaCare, and may abort Obamacare.
Kesler is a freelance writer based in Encinitas. He may be contacted at firstname.lastname@example.org
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