Last Thursday, June 28, the U. S. Supreme Court upheld 5-4 Obamacare’s “individual mandate”  as constitutional under Congress’ power to levy taxes. Importantly, the Supreme Court did not rule on the abortion- and religious freedom-related provisions of Obamacare because those were not the legal issues presented before the Court in this case. As Chief Justice Roberts indicated in the majority opinion, Obamacare can still be challenged as unconstitutional on other grounds. In the same vein, Justice Ginsburg indicated that provisions of Obamacare could be overturned if they infringe on religious freedom and freedom of speech. The Supreme Court decision has allowed abortion funding and threats to religious freedom under Obamacare stand, leaving Obamacare vulnerable to the 23 HHS Mandate cases currently making their way through the courts, as well as to future lawsuits challenging any of Obamacare’s other provisions.
This essay shall (1) summarize the ruling of the Supreme Court in the Obamacare case; (2) explain how Obamacare funds abortion and threatens religious freedom; and (3) offer recommendations on what we should do next.
I. Supreme Court Ruling in National Federation of Independent Business v. Sebelius
Obamacare’s “individual mandate” requires Americans to buy health insurance or pay a penalty. The majority of the states (26) along with numerous other plaintiffs challenged the constitutionality of the “individual mandate” as Congressional overreaching under Congress’ power to regulate interstate commerce. According to the plaintiffs, the Government cannot command citizens to enter the stream of commerce and purchase a particular product.
Justice Roberts agreed with the four conservative justices – Alito, Kennedy, Scalia and Thomas – in affirming the plaintiffs’ argument, declaring the mandate unconstitutional because it is “not a valid exercise of Congressional power under the Commerce Clause and Necessary and Proper Clause.” However, Roberts upheld the mandate as constitutional if Americans are required to pay a “tax” rather than a “penalty” if they do not purchase health insurance: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” Roberts also agreed with the plaintiffs that coercing the states to expand Medicaid under threat of losing federal Medicaid funding is unconstitutional; however, instead of declaring the law unconstitutional, Roberts allowed the expansion and removed the penalty for the states.
Had Roberts sided with the four conservative dissenting justices, Obamacare would have been struck down in its entirety because the dissent declared the whole law to be inseparable. Saving the law from such a fate, Roberts accepted the government’s last minute argument to consider the penalty as a tax, explaining that such an indirect interpretation need only be “fairly reasonable” to be legitimate, and that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”
It is important to remember that the only issues before the Supreme Court in this case were the individual mandate and the Medicaid expansion. Abortion and religious freedom were not considered. Roberts left those issues to be decided separately, either by Congress or through cases such as the 23 pending HHS Mandate cases. Importantly, Roberts implied in the majority opinion  (page 40) that the Supreme Court would strike the HHS Mandate in a future case if it violates religious liberty. He wrote: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.” Justice Ginsburg was even more precise, stating (page 29): “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.”
Although the Supreme Court ruling has set back the cause for life by allowing Obamacare to stand, the Supreme Court has also encouraged those who challenge Obamacare on religious freedom grounds to remain vigilant and to continue in their efforts. The ruling also leaves the door open to amending (or even repealing) Obamacare through Congressional legislation; bypassing a filibuster through the budget reconciliation process is one way this could be achieved.
II. How Does Obamacare Fund Abortions and Violate Religious Freedom?
President Obama promised not to allow federal funding of abortion and to protect rights of conscience under the health care law. On September 9, 2009, at a joint session of Congress on the health care bill , the President stated that “under our plan, no federal dollars will be used to fund abortions, and federal conscience laws will remain in place.” In Executive Order 13535  issued on March 24, 2010, Obama promised to “ensure that Federal funds are not used for abortion services” under Obamacare, and that the health care law “extends [abortion funding] restrictions to the newly created health insurance exchanges.”
However, contrary to Obama’s assurances, Obamacare channels funds for abortion and infringes on religious freedom in multiple ways.
Under Obamacare, most Americans are required to pay an abortion premium that directly and exclusively covers abortion, even if it violates their religious and moral beliefs under the Free Exercise Clause of the First Amendment. Only 16 states have passed legislation to “opt out” of abortion coverage in their state exchange programs, leaving Americans in 34 states subject to the unconstitutional abortion premium requirement.
Obamacare purposefully bypasses the Hyde Amendment. The Hyde Amendment prohibition on the use of federal funds for abortion and abortion coverage (except in cases of rape, incest or to save the life of the mother) applies only to funding through the Labor, Health and Human Services (LHHS) appropriations bill; it does not apply to Obamacare. References by the drafters and supporters of Obamacare to the Hyde Amendment restrictions were irrelevant and purposefully misleading. Furthermore, under Obamacare, federally-subsidized Qualified Health Plans (QHPs) and many multi-state qualified health plans are allowed to use federal funds to cover abortions.
Obamacare’s expansion of Medicaid indirectly opened a door to increasing federal funding of abortion. The Hyde Amendment is not permanent, codified law and must be renewed annually as an appropriations bill rider. Absent a specific provision or law prohibiting federal funding of abortion under Obamacare, if a pro-abortion Congress drops the Hyde Amendment, the abortion funding restrictions go with it.
Lastly, Obamacare requires coverage for “preventative care.” According to the HHS mandate and HRSA guidelines enacted to implement Obamacare, “preventative care” includes abortion-inducing drugs (Ella and “the morning after pill,” Plan B), contraception and sterilization. Under the HHS Mandate, religious employers such as Catholic dioceses, hospitals, charities, schools, universities, and other organizations are required to provide coverage for and facilitate the use of abortion drugs, contraception and sterilization in violation of their religious beliefs and moral convictions. This is unconstitutional under the Free Exercise, Freedom of Speech, and Establishment Clauses of the First Amendment. (For further reading on the HHS Mandate and religious freedom cases, see CLF’s article, “Defending Our First Freedom: The HHS Mandate and the American Promise of Religious Freedom” .
The President’s promises and executive order to extend abortion funding restrictions are not permanent, do not have the force of law, and are easily rescinded. To date, they have not been implemented by any law, rule or regulation. Amendments to comprehensively prohibit federal funding for abortion and abortion coverage under Obamacare were defeated during the health care bill debates. The failure to adopt these amendments and close abortion funding loopholes makes it clear that it was the intent of the law’s supporters (including President Obama) to use federal funds to pay for and cover abortion through Obamacare.
III. What Should We Do Next?
The Supreme Court has allowed Obamacare to stand. There are two ways to prohibit abortion funding and religious freedom violations under Obamacare: (1) through Congressional action; or (2) through the courts. So far, there are two federal bills and 23 cases in the pipeline that would do just that.
A. In Congress
Rep. Chris Smith and Rep. Dan Lipinski introduced the “No Taxpayer Funding for Abortion Act” (H.R. 5939)  in the House of Representatives on July 29, 2010. This bill would permanently codify the Hyde Amendment for all federal funds – including those under Obamacare. Specifically, the bill prohibits the use of federal funds by all government agencies for abortion and abortion coverage. It also prohibits the use of government facilities and employees for abortions, prohibits discrimination against health care providers, hospitals and insurance companies that refuse to participate in or cover abortion, and eliminates tax credits and deductions for abortion expenses.
The Protect Life Act (H.R. 5111) was introduced in the House of Representatives in April 2010 to specifically amend Obamacare to (1) prohibit the use of funds under Obamacare to be used for abortion and abortion coverage; (2) prohibit the use of Obamacare to force private insurance companies to cover abortion; and (3) prohibit discrimination against health care providers who refuse to participate in abortion.
We encourage Congressmen and all Americans to support these two pieces of legislation, and to elect a pro-life Senate and President that would work together with the House to pass these bills or similar legislation to amend and repair Obamacare. .
B. In the Courts
23 lawsuits in 14 states have challenged the constitutionality of the HHS Mandate. Since the Supreme Court ruling did not affect these cases, they will continue to move through the courts. We encourage Americans to continue supporting these cases and to continue to challenge the HHS Mandate. We also encourage Americans to legally challenge the other provisions of Obamacare that create loopholes to fund abortion and force Americans to pay for abortions against their religious and moral beliefs.
The Supreme Court has allowed Obamacare to stand, and President Obama’s executive order to prohibit the use of federal funds for abortion under Obamacare and to protect religious freedom has been ineffective. The Supreme Court has indicated that it would be willing to strike a mandate under Obamacare – such as the HHS Mandate – if it violates religious freedom or any other provision of the Constitution. The need to remain vigilant, continue challenging offensive portions of Obamacare in the courts, and support life-affirming and conscience-protecting amendments to Obamacare has never been greater.
(c) Culture of Life Foundation 2012. Reproduction granted with attribution.