US Supreme Court upholds Obamacare

US Supreme Court upholds Obamacare

Babette Francis

Whatever possessed US Supreme Court Chief Justice John Roberts to side with the four liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, and to uphold Obamacare, i.e., the Patient Protection and Affordable Care Act?

To judge by critiques from conservatives, Roberts' decision upholding the constitutionality of Obamacare was a diabolical betrayal by a conservative Chief Justice whom the Religious Right regarded as one of their own, a daily Mass-goer and communicant.

Pro-lifers and Republicans had hoped the majority would reject Obamacare, but Roberts (appointed by George W. Bush in 2005) sided with the liberal judges and wrote the 5-4 majority decision.

The requirement that everyone buy health insurance or pay a penalty was unconstitutional, Roberts argued, but valid as long as it was considered a tax: "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders."

Roberts agreed with the law's challengers that Congress does not have the power to "compel" the purchase of a private product such as health insurance. But the only penalty the law provides for not complying is an extra charge on income tax returns beginning in 2015 for those who choose not to have insurance coverage.

"The federal government does not have the power to order people to buy health insurance, [but] does have the power to impose a tax on those without health insurance."

The tax would start at $95 in 2015 and increase to $695 by 2017 - far less than the cost of insurance.

Justice Anthony M. Kennedy, normally the court's swing vote, found himself in the unusual position of speaking in a major case for the four dissenters who would have thrown out the entire law. Speaking in harsh tones, Kennedy said the court majority "regards its statutory interpretation as modest. It is not. It amounts to a vast judicial overreaching." Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr agreed in the joint dissent.

Father Shenan J. Boquet, president, Human Life International, said: "Today's ruling is confusing and very disappointing, but is in no way the end of the battle ... We are confident the 12 pending federal lawsuits brought by 43 different organisations against the Obama administration's Health & Human Services department will be validated by the Supreme Court, and that religious freedom will again be upheld in law."

He added: "We remain very concerned about the many serious moral failings of the health care law, ... all Americans who are on government subsidised healthcare plans (which would be almost all Americans) will be forced to pay for abortion through a hidden surcharge ...

"We know this administration has stirred up unprecedented unified opposition from the Catholic Church and many other denominations over another of the Act's mandates, one forcing religious employers to pay for abortion-inducing drugs, sterilisation and contraception, regardless of moral or religious objection ...

"Further, we know a panel has been created that will make policy decisions with life and death implications ... that reduce many of the most vulnerable persons to factors in an equation.

"This administration's reckless anti-life takeover of an industry that intimately affects all Americans has shown their true colours. We can leave nothing to chance. The entire Affordable Care Act - really the Affordable Abortion Act - must be scrapped."

Abortion subsidies

National Right to Life President Carol Tobias said: "The Supreme Court Decision means all voters who care about the value and dignity of human life must do everything they can to elect Mitt Romney and a Congress who are committed to repeal of ObamaCare. If President Obama wins re-election, it will mean massive abortion subsidies and it will put the lives of millions at risk through systematic government-imposed rationing of lifesaving medical care ...".

The US Conference of Catholic Bishops noted: "USCCB's position on health care reform generally and on ACA particularly is a matter of public record. The bishops 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 long standing federal policy ...

"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 sterilisation and contraception, including abortifacient drugs ...

"The 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 urge Congress to pass, and the Administration to sign, legislation to fix those flaws."

There is hope. Chief Justice Roberts in his 183-page judgment did not rule on the constitutionality of the contraception mandate and stated it is up to the legislature to fix flaws in the Act. Several lawsuits are pending and several states have opted out.

An optimistic note comes from lawyer Richard Bolen who writes that Roberts, by defining Obamacare as constitutional because it is imposed as a tax, has made it easier for a Republican President and Congress to repeal it as they will only need simple majorities in the House and Senate, and not the super majorities necessary to avoid filibusters.

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