Thursday, June 28, 2012


My comments first: Although the U.S. Catholic bishops have opposed the law initially, believing its anti-abortion provisions were insufficient, they have never once called for the law's repeal.

The U.S. bishops' conference should continue to press for a resolution on the federal mandate requiring coverage of contraceptives, abortion inducing drugs and sterilization in health care plans that too narrowly outlines the definition of a religious employer and other concerns.

The Church should not involve itself in the fight against a particular way of providing universal health care which the Church believes to be a fundamental right of all people, but the Church should fight immoral aspects of any law, especially if those laws infringe upon religious liberty and freedom of conscience as it concerns the Church's teachings on various medical ethics issues and if the right to life from conception until natural death is in any way taken away from the defenseless, innocent unborn or those in the last stages of life and those even if guilty on death row.

Bishops Renew Plea To Congress And Administration To Repair Affordable Care Act

June 28, 2012

Supreme Court decision does not address fundamental flaws in the law
Legislation still needed to fix conscience, abortion funding, immigration problems

WASHINGTON—Today the United States Supreme Court issued a decision upholding as a tax the provision of the Affordable Care Act (ACA) that requires individuals to purchase a health plan—the so-called "individual mandate."

For nearly a century, the Catholic bishops of the United States have been and continue to be consistent advocates for comprehensive health care reform to ensure access to life-affirming health care for all, especially the poorest and the most vulnerable.Although the United States Conference of Catholic Bishops (USCCB) did not participate in these cases and took no position on the specific questions presented to the Court, USCCB's position on health care reform generally and on ACA particularly is a matter of public record.The bishops ultimately opposed final passage of ACA for several reasons.

First, ACA allows use of federal funds to pay for elective abortions and for plans that cover such abortions, contradicting longstanding federal policy.The risk we identified in this area has already materialized, particularly in the initial approval by the Department of Health and Human Services (HHS) of "high risk" insurance pools that would have covered abortion.

Second, the Act fails to include necessary language to provide essential conscience protection, both within and beyond the abortion context.We have provided extensive analyses of ACA's defects with respect to both abortion and conscience.The lack of statutory conscience protections applicable to ACA's new mandates has been illustrated in dramatic fashion by HHS's "preventive services" mandate, which forces religious and other employers to cover sterilization and contraception, including abortifacient drugs.

Third, ACA fails to treat immigrant workers and their families fairly.ACA leaves them worse off by not allowing them to purchase health coverage in the new exchanges created under the law, even if they use their own money.This undermines the Act's stated goal of promoting access to basic life-affirming health care for everyone, especially for those most in need.

Following enactment of ACA, the U.S. Conference of Catholic Bishops (USCCB) has not joined in efforts to repeal the law in its entirety, and we do not do so today.The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct the fundamental flaws described above. We therefore continue to urge Congress to pass, and the Administration to sign, legislation to fix those flaws.


Anonymous said...

Where should I move to?

My USA has let me down and the tide seems to be too strong to see it turn around in my lifetime.


Anonymous 5 said...

If anyone wants to read my analysis of the case, here it is:

TCR said...

Becoming an expat has crossed my mind. Sometimes I am grateful that my parents (the greatest generation) are not alive to see everything they upheld and fought for torn down brick by brick.

My mother was a victim of a health care system that disparaged her because of her age---and she was only 75. BTW, she had excellent insurance coverage. What I witnessed during her last weeks of life opened my eyes to our culture of death. These provisions are an inherent evil clothed in a desired and much needed good.

Marc said...

I would say that people that are "surprised this is happening in my America" have a misconception about history in general and America in particular. Hegemony is cyclical and the end of the cycle is usally punctuated by a level of moral and economic decadence heretofore unknown to that time and place. America is not immune. Considering the form of government, it is a bit surprising it has taken this long as we are not subject to the inherent conservatism of monarchist states as were most prior global or regional hegemons.

As for the specifics of the Constitutional questions, I defer to Anon5 as that is not my legal expertise. With regard to the faith, I think it is sad that 5 members of the Supreme Court are "Catholic"...

Fr. Allan J. McDonald said...

A5, what I don't understand is that this legislation was passed under the premise of penalties being accessed rather than taxes being levied. Doesn't the decision today then call into question the legitimacy of the congressional vote based not on a taxation but a penalty?

Anonymous 5 said...

Fr. McD, in answer to your question, it's largely word games. To admit that you (as a member of Congress) are raising taxes is to shoot yourself in the foot, if not in the head. So you speak in euphemisms, such as "penalty." Only when you must--say, in arguments before the Supreme Court--do you then change your tune and call it a tax. And rather than do that yourself, you let the solicitor general do it. You don't care what happens to him--you only care about your own re-election chances.

Roberts says that labels don't matter and that it's a tax. But then he contradicts himself by saying that the label of "penalty" DOES matter in that it amounts to Congress saying that the Anti-Injunction Act isn't intended to apply to the mandate. Well, which is it, Chief Justice Roberts? Do labels mean something or don't they? He's talking out of both sides of his mouth, as did the supporters of this law, as to the tax/penalty issue.

Does that help clarify things?

Fr. Allan J. McDonald said...

A5, if the Church then refuses to provide insurance coverage for the abortion inducing drugs, contraception and sterilization, the government technically can't levy a tax against the Church, which is called a penalty euphemistically?

Templar said...

Marc: Roberts, Kennedy, Scalia, Thomas, Alito, and Sotomayor. That's 6 Catholics actually.

While I follow politics and these things annoy me, I find peace in knowing that I am Catholic. Whatever happens here doesn't matter. We should resist that which is wrong, or evil because it is wrong or evil, not in the hopes of any sort of victory. Victory is God's job, Fighting is Ours.

Anonymous 5 said...

Fr. McD, that seems to be what the Ginsberg opinion says, but only in dictum. Until the court strikes down the HHS rule, yes, the Church would have to pay the penaltytax.

rcg said...

Could that be what Roberts is doing? If it is indeed a tax then the Government will have to tax the Church, and if it does that then the Church may participate openly in political matters much more than it now does. Could this actually be him helping?

Anonymous 5 said...


The Right is already trying to spin this somehow as a victory for the Republicans: 5 members refused to expand the commerce power, Roberts is making Obama live with the fact that this is a tax, etc., etc. This all may be true. Sadly, I'd have to categorize your idea with the above ones. The fact is that if Roberts had really wanted to help, he would have joined Scalia et al. and struck the thing down. Then the HHS rule would have gone away automatically.

While this ruling actually isn't as bad as it could have been--after all, the court didn't expand the commerce power, which would have been the end of federalism--it isn't as good as it could have been, either. The only way it might turn out to be a blessing in disguise is if it really does motivate independents to vote for Romney. But given how much the media is in Obama's corner, I'm not hopeful about that. For someone to have performed as he has and still have respectable poll numbers is a fire bell in the night.

Anonymous 2 said...

I am going to let Anon. 5 do the heavy lifting on the Supreme Court decision, for an extremely heretical reason (don’t worry, what I am about to say is legal heresy not religious heresy): I have not yet read the decision and it may be a while before I do. Although I recognize that Supreme Court decisions are extraordinarily consequential in our U.S. legal system, I am no worshipper of the Supremes. I am not suggesting that Anon. 5 is either but, unlike me, I believe he teaches a Constitutional Law course and therefore has to deal with the Supremes all the time. Whenever I have to deal with a Supreme Court decision in my various courses, on the other hand, I come over all queasy and have to lie down until the feeling goes away. In fact, the only other thing that makes me feel quite as nauseous is trying to follow the antics of our political leaders in Washington D.C. (I refrain from commenting on state or local politics). I do often have to read the end product of those antics, Congressional statutes, but my dog’s bowl is generally in better shape than they are. I imagine the health care legislation is little different in that respect.

Even though I have not read the Supreme Court decision, I have read Anon. 5’s undoubtedly much more palatable post on his Blog, for which he gave us the reference above, and have a few observations and questions:

(1) I would suggest caution before we leap to conclusions. From what I understand, based on the commentary I have read and heard, this was not a complete victory for the Administration. Thus, it seems that a majority of the Court effectively struck down the “denial of Medicaid funding” provision that would have penalized states that fail to provide coverage under Medicaid for many of those currently uninsured. In effect this renders state implementation of such expanded coverage optional. Presumably, many Republican-controlled states may decline to opt in, effectively leaving additional millions of people still without most types of health coverage. And with Republicans in effective control of Congress now, a legislative fix seems unlikely.

Even the individual mandate, as I understand it, is supported by a “tax/penalty” for which no enforcement mechanism is provided, although I am unclear on all the ramifications of this. Can anyone else confirm or disconfirm this point?

In addition, it will take a while for expert legal minds (as opposed to the media talking heads and political “spin-meisters”) fully to analyze and digest all the implications of the decision.

(2) Anon 5, I wonder about the analogy you make on your Blog to the Obama Administration refusal to enforce DOMA or the immigration laws in certain respects. As I understand it, the first was based on doubts about DOMA’s constitutionality (an argument that will not be available to a Romney Administration regarding health care in light of today’s ruling) and the second is rooted in prosecutorial discretion (a well recognized practice which is commonly exercised in the immigration area, although admittedly perhaps not usually in such a blanket fashion as currently, and which seems inherently different from a Congressional scheme to grant benefits through the imposition of various duties, requirements, and restrictions on insurance providers).


Anonymous 2 said...

(3) So, the Supreme Court has returned the general issue of health care reform to the legislative branch (although the specific issue of religious freedom is still being litigated). If we have to go through this again, with attempts by Republicans to repeal and replace (or is it just repeal?) the legislation, and so that I don’t have to take my anti-nausea pills again, I hope and pray that our public servants on the Hill and in the White House, whoever they turn out to be, will finally get it together, stop the childish bickering, and act like adults who have been elected to do “the people’s business” – not their own business, not the business of all those at the public trough who pay them the most money or who otherwise squeal the loudest, but “the people’s” business.

And yes, “the people” is arguably another abstraction flitting about on the wall of the Cave. But “the common good” is not. It is an ancient concept, and it now has a well-defined content, at least for Catholics. Personally, I would not even mind so much if our lawmakers disagreed about what the common good actually requires (ends) or about the best way to achieve it (means). Let them argue about _that_ instead of seeking the sum of, or the lowest common denominator of, a snake’s bed of purely selfish interests, in which the most venom is injected into our laws by the wealthiest or otherwise squealiest snakes (to mix animal metaphors), and also let them be willing to compromise where they disagree about precise ends or means.

This resonates with my pleas in earlier comments for a restoration of civic virtue among both political leaders and citizens. Is that really too much to ask?

One final thought – in Britain, there is a National Health Service, funded largely through taxation. There is also a parallel private health insurance system, in which those who are willing and able to pay extra can obtain additional or improved coverage. We always hear about the first. I have rarely, if ever, heard anyone talk about the second.

My apologies for the rant.

Anonymous 5 said...


Good analysis. I do probably spend more time with the Supremes than you do, though I'm not a real Court-watcher, and I get just as nauseous as you reading their stuff. What's more, familiarity breeds contempt. It's no hyperbole to say that if Roberts were in one of my methods courses and tried to play the word "penalty" both ways like that, I would grade him down significantly. Since he's presumably smarter than I am, as well as Chief Justice, I find that fact extremely disturbing. I'm an idealist living in a Critical Legal Studies world and the reality makes me sick.

Re DOMA and the immigrant issue, I'll take the latter first. While you're right about prosecutorial discretion, I think the argument only goes so far in this case. Here it isn't the DA, but his boss, who made the decision, and at first (and second, and third) glance it appears to be blatantly politically self-serving as to subject and timing. Given the president's constitutional duty to take care that the laws be faithfully executed, these facts raise an issue of abuse of discretion in my mind.

As for DOMA: I've always been more of a constitutional historian than a constituional lawyer. As a result, unlike most con law profs I know, I don't really subscribe to the idea that "the Supreme Court has ruled that it's constitutional and therefore it is constituional." In short, many presidents have refused to accept the Court as THE final arbiter of constitutionality. There are some high-profile examples of presidents a) asserting their own rights to judge the constitutionality of a measure and/or b) refusing to give force to the Court's constitutional rulings. So if Obama has doubts about DOMA, then Romney can have doubts about Obamacare, yesterday's ruling notwithstanding.

Given the awful logic that Roberts's opinion rests on, were I president, I would have no hesitation in saying the Court got it wrong and so refuse to enforce Obamacare. I'd buttress my case by pointing out the textual mistakes in the dissent that clearly show Roberts to have switched sides at the 11th hour. If _he's_ that uncertain, obviously we shouldn't give his final opinion too much credence in any event. (Of course I'm not president, so I have the freedom to say what I would and wouldn't do without all the political and institutional constraints I'd face if I actually were president.) Especially in this era, it's easy to reveal the Supremes as just another bunch of politicians, since that's largely what they now are (if they ever were in fact anything else.) If you use such atrocious reasoning as this, you've come down off the pedestal and are fair game, IMHO.

Anonymous 5 said...

anon2; I just re-read my own post. I hope it's clear that the "you" in my final sentence refers generically to the Supremes, not to your gracious self. :-)

Anonymous 2 said...

Anon. 5: Many thanks for your thought-provoking response. Yes, I did understand the "you" reference but thanks for clarifying anyway. You raise some very interesting points. I am not where I can research all the information I would want, so this reply is necessarily tentative.

Re prosecutorial discretion: The Administration might be on stronger ground if it seeks to justify the “Dream Act” exercise of discretion on more “objective” grounds such as administrative efficiency and/or humanitarian reasons. I believe that ICE internal guidelines already categorize in this way. Also, of course, the Obama Administration has been prioritizing certain categories (e.g., those with criminal convictions) in its current removal prosecutions. Arguably, this latter policy is not unreasonable given the scale of the “undocumented” problem and the apparent fact that removals are significantly higher under Obama than under Bush. Here is at least one relevant document:

On the other hand, Obama was rather obvious about the politics of the “Dream Act” policy. But, on the other hand again, and speaking now more to the politics of it (I don’t know how strong a defense this point would be legally), Congress has been delinquent in its own duties to address the Dream Act, let alone the entire issue of comprehensive immigration reform, despite the efforts of Mitt Romney to pretend that Obama has “done nothing” in this direction for three years. That goes to point (3) in my previous post. The Republicans in Congress have behaved badly in my view. The Democrats are certainly not blameless, but the Republicans have been blatantly obstructionist and mean about it. We the people deserve better. I speak as an Independent.

Re DOMA: Several lower courts have apparently now ruled DOMA unconstitutional (I need to double check whether it is section 2 or section 3 or both, however). It would be interesting to see what the Supremes would do with it.

Your speculations based on historical precedent are intriguing. How did those episodes turn out again? It is over thirty years since I last considered them in my Con. Law class in law school. Am I correct in thinking they provoked a constitutional crisis? If so, do we really want this? The Rule of Law seems at its thinnest substantively in constitutional cases, especially when the Supremes get their hands on a case, but do we want to forgo its undoubted procedural value, especially at a time when there is such cynicism about the political branches – isn’t Congress currently “enjoying” its lowest approval rating ever?.

Moreover, arguably Roberts, for all the arguable faulty logic, was trying to exercise judicial restraint and “de-politicize" the Court in this case and thereby return the matter to the people’s representatives. So we’re back to point (3) again!

However, as mentioned above, I need to confirm some of this through additional research rather than from memory (which nowadays especially can prove somewhat faulty!). So, I may be back with nore!

Anonymous 5 said...

Anon2: I'll defer to your knowledge of the DREAM Act and ICE policies, which I can see are definitely superior to mine. For the record, I too am independent (though I prefer the term non-partisan, since the label "Independent" has always sounded too monolithic and partisan to my ear), and I never hesitate to criticize Republicans when they deserve it. (I tend to be far to civil libertarian in most areas for their taste anyway.) In the immigration issue, I have a rather simplistic approach: they're illegals. I recognize their crucial importance to the national economy, including the economy of my own state, but I refuse to have a dialogue about them with our elected officials of either party until we either grant them amnesty or modify the immigration laws or start rigorously enforcing those laws as they currently stand. I don't like this habit of just ignoring law, especially to the detriment of border states who are preempted from dealing with the major problems of illegal immigration on their own.

Re DOMA, i attended a CLS workshop on full faith and credit many years ago when this was just starting to be an issue. The presenter talked about a national uniformity exception and argued that a DOMA-like law would fall under it. I need to go back and do my homework on the subject.

The executive actions that occur to me revolve largely around the early use of the presidential veto. Until Jackson, presidents uniformly refrained from vetoing laws on policy grounds; they did so only when, in their judgment, a proposed law was unconstitutional. In that sense they precluded the courts from even getting to consider the bills in question. Jackson introduced not only the frequent use of the veto, but made it an exercise of policy, although in some of these vetos--the Maysville Road veto occurs to me but that might not be the one I'm thinking of--he specifically asserted that he had as much right as the courts to determine constitutionality. (Jacksonianism was also famously opposed to an appointed judiciary, with elected state judges dating heavily from this era; we also see the rise of the codification movements at this same time as a means of clarifying the law for non-jurists).

While Jackson's famous (and probably apocryphal) statement in Worcester v. Georgia doesn't directly regard who is a legitimate, or the final, arbiter of the federal Constitution, being judicial review of state legislation, I have no doubt that if jackson had been called upon to use federal authority to prevent Georgia from defying the Court, he wouldn't have done so. Lincoln, both as presidential candidate as well as president, actively denounced Dred Scott; I'd have to do a little research to decide if his actions specifically contravened the Dred Scott Court.

Also early on, the idea of the states as the ultimate interpreters of the Constitution had a lot of lip service paid to it (Virginia and Kentucky Resolutions, South Carolina Exposition and Protest); Chisholm v. Georgia comes to mind as a rare example of a state simply ignoring a federal court's assertion of jurisdiction. FDR's court-packing speech is probably the most famous and dramatic statement thatthe Court wasn't playing fair, but that wasn't a claim that its decisions were invalid--just that it should be impeded by constitutional processes from issuing future such rulings. It turned out badly for FDR.

Ultimately, regarding your "rule of law" issue, I would class yesterday's case as one of Charles Evans Hughes's "self-inflicted wounds," i.e., one of those cases in which something calls the Court's legitimacy into question to a degree, e.g. Dred Scott, the Legal Tender cases, and Pollock v. farmers' Loan (especially the latter). I'm afraid that Robert's' spurious legal reasoning will stoke that fire rather than quench it. I'll quote something of Hughes's in my next post.

continued . . .

Anonymous 5 said...

continued--One of Hughes's self-inflicted wounds was Pollock income tax case of 1895, and it bears an interesting similarity to yesterday's case, given the evidence that Roberts changed his vote and then based that vote on shoddy reasoning. In Pollock, the court at first split evenly on the constitutionality of the income tax, then ordered reargument, and then struck the tax down by one vote. Quoting Hughes: "It was evident that the result was brought about by a change in the vote of one of the judges who had participated in the first decision. There can be no objection to a conscientious judge changing his vote, but the decision of such an important question by a majority of one after one judge had changed his vote aroused a criticism of the Court which has never been entirely stilled."

Likewise, in the Legal Tender Cases, the Court rapidly reversed itself owing largely to the happenstance appointment of two new justices. Hughes: "The Court alone was responsible for the unfortunate effect of its change of front and for its action in reopening a case which might well have been considered closed. . . . [T]he effect of such a sudden reversal of judgment might easily have been foreseen. Stability in judicial opinions is of no little importance in maintaining respect for the Court's work."

Add to this that legal Tender and Pollock were, like the Obamacare case, cases of particularly great public interest in the issue, and you have the potential for Roberts to cause similar legitimacy problems for the Court. Were I a politician seeking the White House, I would exploit it, because given Roberts's reasoning I could do so in good faith. Candidate Lincoln made no bones in 1858 about the fact that Dred Scott had been wrongly decided (although I'll grant that he expressly disavowed any threat to disobey it).

Anonymous 2 said...

Anon 5: “Non-partisan” works fine for me too. I mean to say that neither of the major parties (nor indeed any party) can take me for granted. They have to persuade me, a task that becomes increasingly difficult as time goes on. This explains my preference for minimizing the damage they can do by not wanting to give either party a clean sweep of Congress and the Presidency but distributing the power in such a way that they will be forced to work together, although I fear that my earlier comments on that point may have been misunderstood by some. Of course, matters would be different if they started doing their jobs properly.

In immigration, for example, we definitely need comprehensive immigration reform (including a path to citizenship), but I agree that this _has_ to include effective border control and enforcement. Anything else makes a mockery of the Rule of Law. And there are ways to do this while minimizing the risks from legislating either enforcement enhancement first or legalization and other benefits first (the risk being that that the other will not get done) – for example, simultaneously legislating the benefits together with a trigger mechanism that the benefits provisions only become operative when effective enforcement is demonstrated (and continually monitored, of course, which could be combined with a “sun setting” provision).

So, get short-term political calculation out of it, get partisan bickering out of it, get ideology and money out of it, and get on with fixing the problem and fashioning a smart immigration policy based on the very best objective information we can obtain. Hmmm, perhaps not a bad formula for all sorts of things =). But then I am a hopelessly quixotic idealist!

I also like your point about the Constitution being a document that governs all of us and that therefore requires interpretation by all concerned parties. I often try to tell my students that constitutional norms are not only intended for courts. Of course, that still leaves open the “ultimate arbiter” issue, and here respect for the Rule of Law must, I think, involve a high degree of deference to the courts, however dreadful or “political” their decisions sometimes can be (subject, of course, to exercise of the right to conscientious civil disobedience when faced with egregiously unjust law). I am too conservative to contemplate the alternative with great relish, except in extremis.

Doug Indeap said...

I understand that some Catholics now think they and their religion are victims of the administration's implementation of the health care law and that the law forces employers to act contrary to their consciences. I think, though, that they have been duped by their bishops and are being used to serve the bishops' rather ordinary political aims. Notwithstanding the bishops' arm waving about religious liberty, the law does not force employers to act contrary to their consciences.

Many initially worked themselves into a lather with the false idea that the law forces employers to provide their employees with health care plans offering services the employers consider immoral. The fact is that employers have the option of not providing any such plans and instead simply paying assessments to the government (which, by the way, would generally amount to far less than the cost of health plans). Unless one supposes that the employers’ religion forbids payments of money to the government (all of us should enjoy such a religion), then the law’s requirement to pay assessments does not compel those employers to act contrary to their beliefs. Problem solved. Solved--unless an employer really aims not just to avoid a moral bind, but rather to control his employees' health plan choices so they conform to the employer's religious beliefs rather than the law, and avoid paying the assessments that otherwise would be owed. For that, an employer would need an exemption from the law.

Indeed, some have continued clamoring for such an exemption, complaining that by paying assessments to the government they would indirectly be paying for the very things they opposed. They seemingly missed that that is not a moral dilemma justifying an exemption to avoid being forced to act contrary to one’s beliefs, but rather is a gripe common to many taxpayers–who don’t much like paying taxes and who object to this or that action the government may take with the benefit of “their” tax dollars. Should each of us be exempted from paying our taxes so we aren’t thereby “forced” to pay for making war, providing health care, teaching evolution, or whatever else each of us may consider wrong or even immoral? If each of us could opt out of this or that law or tax with the excuse that our religion requires or allows it, the government and the rule of law could hardly operate.

In any event, those complaining made enough of a stink that the government relented and announced that religious employers would be free to provide health plans with provisions to their liking (yay!) and not be required to pay the assessments otherwise required (yay!). Problem solved–again, even more.

Nonetheless, some continue to complain, fretting that somehow the services they dislike will get paid for and somehow they will be complicit in that. They argue that if insurers (or, by the same logic, anyone, e.g., employees) pay for such services, those costs will somehow, someday be passed on to the employers in the form of demands for higher insurance premiums or higher wages. They evidently believe that when they spend a dollar and it thus becomes the property of others, they nonetheless should have some say in how others later spend that dollar. One can only wonder how it would work if all of us could tag “our” dollars this way and control their subsequent use.

The bishops are coming across more and more as just another special interest group with a big lobbying operation and a big budget—one, moreover, that is not above stretching the truth.

Fr. Allan J. McDonald said...

It is one thing to pay taxes that provide immoral services, such as abortion, but it is altogether different to ask the Church's self-insurance programs to provide immoral services. I don't think the bishops would have a leg to stand on if the Affordable Health Care act stated that for those who object to providing these services, all one has to do is go to any drug store and get your birth control needs free and the government (through taxation) will reimburse the pharmacy. That is altogether different.

Doug Indeap said...

I, for one, would endorse that solution, but I suspect those opposed to the single-payer approach would object to it as a step in that direction. It is, by the way, an approach suggested by the CHA in its recent comments on the ACA.

Anonymous 2 said...

I was checking this thread for another point and happened to see the continuation of the discussion with Doug Indeap. It may be too late for effective comment, but just in case you are still following it, Doug, I did want to raise a question with you.

As I have indicated recently on other threads, Constitutional Law is not really my thing (I have never taught a course in it, for example, although I do have to address certain aspects of it sometimes), so I am no expert on the First Amendment Free Exercise Clause. Also, I do not know whether the Administration’s accommodation is a realistic and just solution or not. However, I do think it is important that the First Amendment free exercise liberties of the Church (both of Church organizations and of individual Catholics) be properly respected as the law requires. That is why I support the legal challenge, so that these questions can be addressed by the courts and the matter resolved in accordance with the Rule of Law.

So, here is my question for you: To develop Father McDonald’s point in his response to you, isn’t there a material difference between the situation where someone is given a choice between complying with a constitutional legal mandate (as we are now told the individual mandate is) or paying a penalty/tax, on the one hand, and the situation where the choice is to comply with an unconstitutional mandate or pay a tax/penalty on the other? In the first case, you are correct that one can avoid an action one regards as unconscionable simply by paying the penalty/tax, and this is just tough. That is the price for being true to one’s convictions. But in the second case, the government is not putting one to that election but penalizing an assertion of constitutional rights/liberties. Surely we do not want to give the government_that_power. And that is what is being tested in the litigation, as I understand it.

Please challenge my analysis if you think it is faulty, although I realize no-one may still be watching.

On another point, we should not forget that the government lost big-time on the Medicaid expansion mandate (the spending power issue), and some 8 million plus people who would otherwise have been covered under the ACA may now not be covered, depending on what the states choose to do.

Personally, I don’t know what the best solution for providing universal health care might be. But I am pretty sure there is a big problem in this country and that we do not have the best health care system in the world, whatever the cheerleading crowd may say – far from it. I believe that America stands alone in failing to ensure universal health care for its people among developed countries. So I am inclined to repeat what I said above about immigration:

“[G]et short-term political calculation out of it, get partisan bickering out of it, get ideology and money out of it, and get on with fixing the problem and fashioning a smart [health care] policy based on the very best objective information we can obtain. Hmmm, perhaps not a bad formula for all sorts of things =). But then I am a hopelessly quixotic idealist.”

On the other hand, that seems to be what Taiwan did in trying to address the problem. We can always live in hope!! (BTW, according to Fareed Zakaria, when Taiwan studied many different systems in the world in researching possible solutions, it looked to the U.S. as an example of how _not_ to do things).

Gene W. (formerly Pin) said...

Anon 2, It is the spirit of this whole thing. I don't care about the legal niceties or or any long, word parsing discussions. The spirit of the entire law, this entire administration, is anti-founding principles, anti-Catholic/Christian, and anti-Capitalist/free-enterprise. It is a form of social engineering, it is Socialist to the core and, I believe, reverse-racist. In another day, these Carpetbag, former-slave, dilettante scalawags would be tarred and feathered and run out of town...or worse. It is a sad indictment of what our country has become that they are even in office. We deserve exactly what we get.

Anonymous 2 said...

Hello, Gene. So someone was still watching after all!

Let's say for the sake of argument that your colorful characterization of the current Administration is accurate. How do we fix the healthcare problem? As I have said before, I would just like our elected reprsentatives to do their jobs properly.

Does my suggested formula for public policy decision-making sound reasonable to you:

“[G]et short-term political calculation out of it, get partisan bickering out of it, get ideology and money out of it, and get on with fixing the problem and fashioning a smart ________ policy based on the very best objective information we can obtain."

Doug Indeap said...


You are correct in observing that I did not directly address the issue of whether the ACA infringes on religious liberty. I presumed the ACA was constitutional in this respect and addressed the next issue of whether an exemption is warranted.

Confronted by questions about the government requiring or prohibiting something that conflicts with someone’s faith, the courts have generally ruled that under the Constitution the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning pollution, contracts, torts, crimes, discrimination, employment, etc.) and can require everyone, including those who may object on religious grounds, to abide by them. (E.g.,

When the legislature anticipates that application of such laws may put some individuals in moral binds, the legislature may, as a matter of grace (not constitutional compulsion), provide exemptions for conscientious objectors. In doing so, the legislature need not offer the objector a free pass. For instance, in years past, we have not allowed conscientious objectors simply to skip military service for “free”; rather, we have required them to provide alternative service in noncombatant roles or useful civilian work.

The real question here then is not so much whether the First Amendment precludes the government from enacting and enforcing the generally applicable laws regarding availability of health insurance (it does not), but rather whether there is any need to exempt some employers in order to avoid forcing them to act contrary to their consciences. As discussed in my earlier comment, since the law already affords employers choices by which they can avoid acting contrary to their consciences, there is no need for an exemption.

The bishops' invocation of "religious liberty" is but a ploy to rile up their followers so they can achieve the political aim of gaining an exemption that allows employers to limit their employees' choices to those conforming to the employers' religious beliefs. Their aim is not religious liberty for themselves (they already have that), but rather power over their employees.

Anonymous 2 said...

Thanks for your response, Doug.

If the contested regulations requiring the controversial coverage are constitutional, and if (and perhaps even because) Catholic employers can avoid having to “cooperate in evil” as they see it by paying a penalty, then I might tend to agree with you. However, if those regulations are unconstitutional even with the existence of a penalty option, then Catholic employers should not be compelled to any election at all to avoid having to “cooperate in evil.” That is why I am inclined to let the courts answer this.

You seem to be of the opinion, however, that the constitutional challenge is baseless. Perhaps you are correct. I am unable to judge that. I certainly hope it is not baseless, even if the plaintiffs end up losing on the merits in the end, because the use of litigation to obtain a political advantage while manipulating the faithful would be distasteful to me (although I could see such a use as being appropriate if employers are not permitted to provide insurance coverage pro tanto and pay a penalty to the extent of the lack, because an all or nothing proposition would seem too draconian; however, I do not know how the penalty provisions would actually operate).