On March 27, 2012, I attended the oral argument at the United States Supreme Court on the constitutionality of the mandate provision in the Affordable Care Act that would require virtually all U.S. citizens to purchase a health care policy. As a long time student of the constitution, it was intellectually riveting to see the rapid fire questions from the justices and the reaction of skilled advocates on both sides of this issue as they tried to use the force of logic to dislodge a justice from his or her seeming unswerving position.
Outside the courthouse the battle lines were equally divided as demonstrators gathered from all over the country to either decry the unconstitutionality of the Act, or urge the Court to preserve the Act. It was in many respects like watching history unfold. Regardless of one’s stand on the Act, one thing was clear – - this would be a watershed decision. The consequences of this ruling transcends healthcare as much as the Court’s 7-2 decision a century and a half earlier in Dred Scott transcended slavery.
Our country likewise seems transfixed and divided over the question of whether this Congressional exercise of power exceeds the sovereign domain of the states. No fewer than twenty-six states sued to challenge the Act asserting, among other things, an intrusion on their rights under the 10th and 11th Amendments which reserve to the states and to the people all rights not specifically enumerated in the constitution to the federal government.
If the Court affirms the Affordable Care Act, virtually all Americans, as well as every institution in our society will be impacted in some way. Among the most cherished of these is the church. Surprisingly, this important aspect of the law was never addressed during oral argument, but the impact on religious organizations is no less significant and portends of future constitutional challenges if the Court upholds the Act.
Like many sweeping Congressional reforms, this Act empowers the Department of Health and Human Services to promulgate rules to implement its provisions. One such provision known as “The Interim Rule”, mandates that all health insurance plans cover prescription contraceptives, sterilization, and related patient education and counseling. To some religious employers, like the Catholic Church and many conservative Protestant evangelical groups, this imposes an insupportable and undue burden on their sincerely held religious beliefs.
To these churches, their longstanding moral opposition to artificial contraception and sterilization is not something that can be carved out from the institution’s overall mission. As one writer has described it:
. . . [T]he Church’s position on birth control is not a stand-alone item. From the Church’s standpoint, its position on birth control is part and parcel of its commitment to the sanctity of life . . . This need to defend the right to life from beginning to end manifests itself in a cohesive body of beliefs that starts with contraception and runs through abortion, the death penalty, and assisted suicide. Thus, an attack on any part of that core set of beliefs strikes at the heart of what the Church deems sacred.
Susan J. Stabile, State Attempts to Define Religion: The Ramifications of Applying Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers, 28 Harvard J. L. & Pub. Pol’y 741 (2005).
While a decision is not expected from the Court until June of this year, the impact of the HHS Interim Rule is already taking its toll as some religious institutions are already preparing for the fines that will be imposed if the Act is sustained.