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 CNS Story:

WASHINGTON LETTER Jun-29-2012 (950 words) Backgrounder. With photos posted June 28. xxxn

More to come: Lawsuits over HHS mandate keep health reform law in court


Kristan Hawkins, executive director of Students for Life of America, uses a bullhorn in a demonstration at the U.S. Supreme Court building in Washington June 28. (CNS/Bob Roller)

By Nancy Frazier O'Brien
Catholic News Service

WASHINGTON (CNS) -- Although legal scholars and political observers will likely spend days parsing each line of the 193 pages of U.S. Supreme Court opinions and dissents on the health reform law, the court's June 28 decision is not likely to be its final word on the Patient Protection and Affordable Care Act.

"It seems to me the (Obama) administration has won one legal challenge and there are 23 others waiting in the wings," said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and a professor of constitutional law at The Catholic University of America's Columbus School of Law.

The Becket Fund represents Belmont Abbey College in North Carolina, Colorado Christian University in Denver, Eternal Word Television Network in Birmingham, Ala., and Ave Maria University in Florida in lawsuits challenging the Department of Health and Human Services' mandate requiring most religious employers to provide contraceptives and sterilization to their employees free of charge.

Another 12 lawsuits involving 43 Catholic dioceses, schools, hospitals, social service agencies and other institutions were filed simultaneously in May; several private employers, Catholic organizations such as Priests for Life and Legatus and some non-Catholic colleges also are challenging the mandate in court.

The June 28 decision dealt with the individual mandate -- the requirement that individuals buy health insurance or pay a penalty to the Internal Revenue Service -- but the lawsuits against the HHS mandate relate to the law's employer mandate, which punishes employers who do not provide health insurance to their employees.

"The court's opinion today did not decide the issues in our cases," said Hannah Smith, another Becket Fund senior counsel. "We are challenging the HHS mandate on religious liberty grounds which are not part of today's decision. We will move forward seeking vindication of our client's First Amendment rights."

Legal scholars did not see a lot of new constitutional ground broken by the decision, which found that although the individual mandate does not pass constitutional muster under the Commerce Clause of the Constitution, it can be upheld as an acceptable exercise of Congress' taxing powers.

The decision also limited the federal government's right to withhold its share of Medicaid funding from states that do not expand the health program for the low-income and disabled as mandated by the law.

It would have been groundbreaking, according to former U.S. Solicitor General Walter Dellinger, if the four dissenting court members had been able to convince a fifth to overturn the entire Affordable Care Act.

"That would have been an extraordinary expansion of constitutional law," said Dellinger, now a partner in Washington with the international law firm O'Melveny & Myers, at a June 28 teleconference sponsored by the American Constitution Society for Law and Policy.

He said the decision represents "only a modest incursion on congressional powers in terms of the spending clause." But the court was "one vote away from severe limits on the authority of Congress."

Richard Garnett, a professor of law and political science at the University of Notre Dame and a former law clerk for the late Chief Justice William Rehnquist, said he found the decision "complicated and interesting," especially because of its findings on the limits of congressional power and on states' rights.

"The Medicaid expansion decision puts teeth into the notion that the federal government can't coerce states," he said. "At the end of the day, the act is upheld, and that's a win for the administration. But there was strong emphasis from Chief Justice Roberts on the continuing importance of federalism, the continuing importance of judicial review."

Some commentators are finding signs for the future of the HHS mandate lawsuits in two sentences from the opinions -- one from the Roberts majority opinion and one from a concurring opinion by Justice Ruth Bader Ginsburg.

The Roberts quote says, "Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with our requirements in the Constitution."

Ginsburg wrote, "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."

It is impossible to know what, if any, influence those lines might have on the decision-making when the HHS mandate lawsuits eventually reach the Supreme Court in two or three years.

But in a June 29 interview with Catholic News Service at the Vatican, where he had just received the pallium from Pope Benedict XVI, Archbishop Charles J. Chaput of Philadelphia said he and other Catholic leaders would continue to fight any efforts to infringe on the church's ability to act according to its own teachings.

"I don't think the bishops as a group were opposed to the (health reform) law, but certain provisions of it we think are very damaging to our religious freedom," he said. "The church hasn't said that the government needs to provide (health care) but that people should have access to it. So you can have different positions on that. But what the church is concerned about is the government forcing the church to act contrary to its teachings."

Archbishop Chaput said the battle would play out in the courts "and I suspect that some of us, if we're not able to convince the courts, will have to act in a way that is faithful to (our teachings) rather than what the courts tell us to do.

"I hope it does not come to that," he added. "It's hard for me to imagine that the United States of America would prosecute any religious body because of its religious beliefs."

- - -

Contributing to this story was Francis X. Rocca at the Vatican.

END


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