The HHS mandate within Obamacare is being argued today at the Supreme Court. Never mind the noisy and false claims that bosses are trying to make medical decisions for women. (Note for example the #notmybossbusiness hash tag introduced by mandate absolutists on Twitter.) Religious liberty is what the Hobby Lobby case is about. Americans United for Life sums it up in this two-minute video.
I haven’t made a secret of the fact that I am not a fan of Obamacare. I have to admit that I take a grim pleasure in the news about the administrative foul-ups that have complicated the “rollout.”
I am skeptical that any complication or delay will lead to substantive changes in the misnamed “Affordable Care Act.” Even the current tinkering with the individual mandate doesn’t make me feel much better. The Administration’s #1 concern seems to be that the public is having trouble with the web site. What happens once the web site is up and running? ACA implementation will proceed apace. Obamacare as we know it is perfectly safe. Here are three reasons I’m not breaking out the champagne over ACA glitches.
Kathleen Sebelius is still Secretary of HHS.
As long as Secretary Sebelius holds down her Health and Human Services job, we know the Administration is not having second thoughts about Obamacare. Sebelius has been the second-biggest advocate, cheerleader, and apologist for the program since the day Nancy Pelosi brought down her gavel and jubilantly announced “The bill is passed!” President Obama and Sebelius are the faces of the ACA.
If she were to leave her post during this President’s tenure, it would look as though the ACA were a dead horse she got tired of beating. If Obama were to let Sebelius go, he’d be acknowledging substantive trouble with his pet law. As long as he keeps her, he shows confidence in the legislation.
The White House is still saying birth control is “essential to women’s health care” and is still telling Americans how to practice religious beliefs.
In a White House statement issued last month after the U.S. Supreme Court agreed to take the Hobby Lobby case, the press secretary speaking for the Administration affirmed “The health care law puts women and families in control of their health care by covering vital preventive care, like cancer screenings and birth control, free of charge [emphasis added]….The Administration has already acted to ensure no church or similar religious institution will be forced to provide contraception coverage and has made a commonsense accommodation for non-profit religious organizations that object to contraception on religious grounds. These steps protect both women’s health and religious beliefs, and seek to ensure that women and families–not their bosses or corporate CEOs–can make personal health decisions based on their needs and their budgets.”
Consumer control of health care decisions means no co-pay? I haven’t seen any comparable White House statement about how awful it is that bosses or corporate CEOs make personal health decisions for families by denying 100% coverage of diabetes regulation – which is after all preventive in a logical if not political sense, given how uncontrolled diabetes destroys health. If giving women and families full control of health decisions means not having any co-pays for birth control, how can ANY co-pay stand under law?
So suppression of fertility is still the same thing as cancer screening in the eyes of the Obama Administration. Women’s fertility, that is. Once that falsehood is abandoned by the President and a majority in Congress, Obamacare will lose one of its essential supports.
The White House continues to say that “commensense accommodation” has rendered all religious challenges to the ACA moot. More than eighty pending lawsuits say otherwise. “Religious organizations” as defined by the Administration are accommodated. Individuals holding to the same religious tenets as those organizations are not. That’s the trouble with the HHS mandate.
Republicans in Congress have not as a majority body expended political capital to challenge the mandate, and Democrats are only too happy to elevate contraception above the Constitution. That means the HHS mandate will stand, unless the Supreme Court throws it out. As long as the mandate stands, so does Obamacare.
Lack of cybersecurity hasn’t brought Obamacare to a screeching halt.
There’s no one left in a Cabinet-level Administration post who can say with a straight face that the information Americans enter into a computer in order to sign up for the ACA is secure. Privacy is not a serious consideration within the law, nor has it ever been. Once that changes, I’ll know Obamacare is in trouble – because that will mean a full stop to the law while the technical side is re-developed.
John Fund in a recent column summarized how HHS addressed security concerns in Obamacare’s early days, based on the Federal Register from March 27, 2012: “At that meeting, two commenters asked HHS to ensure the exchanges would promptly notify affected enrollees in the event of a data breach or unauthorized access to the exchange’s databases. One commenter suggested that a full investigation be launched each time such a breach occurred, with the goal of holding hackers legally and financially accountable for breaking into the website. According to a report by the group Watchdog.org, HHS responded: ‘We do not plan to include the specific notification procedures in the final rule. Consistent with this approach, we do not include specific policies for investigation of data breaches in this final rule.’ In other words, the government doesn’t have to tell you about a security breach unless it decides it wants to — despite the fact that private companies are required to publicly disclose any incidents. State laws also require many of the 14 state-run insurance exchanges to disclose such information, but no such law exists for the federally run exchange, which 36 states rely upon.”
Imagine a private company being so cavalier about data breaches. A recent breach at Target stores resulted in quick detection and immediate efforts to warn consumers. If the company had been any slower to react, Target’s CEO would be getting grilled in Washington right now, with cameras rolling and politicians thundering about the evils of Big Business. Corporate heads would roll. The same behavior in a government agency doesn’t bring forth quite the same reaction.
And by the way …
Don’t confuse ACA implementation with health care. What kind of metric have you heard of that HHS might use to measure outcomes from ACA? Will we know in five years how many people have coverage, compared to today?
Probably not. The baseline the government will use to measure coverage will probably be how many people had ACA-compliant policies before the ACA was in place. Wonderful. We’ll have a meaningless statistic that will keep us in the dark about the only health-coverage question that ought to matter to HHS: how many Americans are getting CARE? Not insurance coverage, but actual care. Not how many dollars we’re spending on Medicaid and insurance subsidies, but how many people need health care and aren’t getting it.
Will Americans be healthier in five years, or will they just be filling out different forms at their clinics?
Obamacare seems to be set up to keep that information obscured. Insurance equals care, goes the narrative, and actual care is not what we’re tracking here.
The rumors of Obamacare’s death are greatly exaggerated, it seems to me. When Sebelius is out, the HHS mandate is gone, and web site security becomes a priority, I might take a different view. Until then, regardless of controversies, Obamacare is entrenched.
Just so we’re clear:
“It,” of course, is the President’s health care plan. I will refer to it here as Obamacare, despite the re-branding that is part of the President’s new-and-improved effort to promote it. The quote above was from a speech yesterday kicking off a series of appearances, a road show, to convince people that the fouled-up web site for signups is being de-fouled even as he speaks.
And the HHS mandate? That term hasn’t passed Mr. Obama’s lips lately, if ever. In case you’re wondering if he stands behind it, defends it, and thinks it’s an integral part of the plan, check out a line that appeared in yesterday’s speech and has already been used by the President’s surrogates:
The President would have us believe that a $500 mammogram and a $10 birth control prescription are identical as “preventive care,” presumably because he thinks pregnancy and cancer amount to the same thing. “Mammogramsandbirthcontrol” has become one word in the White House lexicon, occasionally varied with “cancerscreeningsandbirthcontrol.” It’s all the same, says the traveling salesman.
Glad to oblige.
First, I refuse to take health advice from any individual or any bureaucracy that cannot distinguish between a mammogram and birth control pills. The medical professionals who colluded in the development of Obamacare policy should be ashamed of themselves for calling fertility suppression “preventive” care.
Second, the President is once again not being straight with his audience – either the adoring fans he had at yesterday’s speech, or the American public he likes to address on television – about the fact that he is determined to roll the First Amendment flat, using Obamacare as the steamroller. The HHS mandate to force participation in a program providing “free” birth control is a direct denial of the religious freedom rights of Americans who dissent from the Administration’s view that there is no moral aspect to birth control and abortion. Catholics who accept Catholic teaching (and what a world, in which I have to include that modifier) are not the only people affected. Evangelical Protestants, among others, have gone to court over this.
Third, looking at the lawsuits challenging the mandate, two have arrived at the Supreme Court. In the case involving Hobby Lobby, the plaintiffs say they only object to a few of the birth control methods defined as “preventive” under the President’s law, namely the ones that actually induce early abortions rather than prevent fertilization. The President isn’t commenting on the very real possibility that the U.S. Supreme Court will declare that abortive agents are the same as contraceptives. We have already seen from the list of “preventive” services under the health care law that biology has been put at the service of politics. No one familiar with twentieth century history should be able to contemplate that without recoiling.
So there are three things the President won’t tell you: “preventive” is a misnomer, the First Amendment is at stake, and science and politics are in bed together.
What would I do instead, you ask? Repeal the mandate. We can debate ways and means and web sites once the First Amendment is restored to its proper place. But first, simply repeal the mandate.
I wrote last February (“Memo to the President: Mandate 2.0 is still a failure”) about how the mandate was not being fixed by the Administration despite a few tweaks. Then, as now, the President was seeking public comment. I am nothing if not responsive to such appeals. Much of what I wrote then still holds today.
You cited advisors at the “Institute of Medicine” who concluded that it is much cheaper for women to be chemically altered than to have babies. Sterilization and abortion-inducing drugs made it into the Mandate as well. No corresponding concern for the cost savings attendant upon male contraception and sterilization made it into your guidelines for “preventive” services.
…Your contempt for my religion still permeates your health care plan. It is a matter of deep religious belief for me that fertility is a gift, to be regulated by means consistent with human dignity, and at no point considered to be a public health problem. And if you call contraception “preventive,” then you are calling fertility a problem.
…Women aren’t broken and they don’t need fixing. If only you hadn’t called contraception for women a “preventive” service, we wouldn’t need to have this conversation. How ironic that an Administration that has claimed “being a woman shouldn’t be a pre-existing condition” has codified precisely the opposite.
[The Administration issued modified regulations to determine which religious institutions could get a waiver from the mandate.] … Instead of one executive agency (HHS) deciding what’s religious, you are turning the matter over to another executive agency, the IRS, that has been making that determination for years. The new regs also exempt non-profit religious organizations that meet four criteria, or jump through four hoops, to the satisfaction of whatever agency is going to implement this whole policy. Seldom do the American people have cause to be glad the IRS is going to define religion, but at least by bringing the tax people into it, you are making an effort at consistency. [I need to take back that last sentence. When I wrote it last February, I hadn’t heard of Lois Lerner.]
But what about individuals? What about groups that do not hold themselves out to be “religious” but are nonetheless animated by a respect for life that makes the Mandate abhorrent to them? What about a business owner – someone who owns a hobby store, as an example – who has religious objections to providing contraception and abortion-inducing drugs by way of employee health insurance?… Individuals have religious liberty AND conscience protection under our Constitution, and those protections are not forfeited when individuals form groups or run businesses.
Like the man said, I need you to spread the word about the law. Tell your friends.
In 1969, in the Tinker case involving the First Amendment rights of students in a public school, the U.S. Supreme Court famously ruled, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Today, forty-four years later, the Supreme Court has agreed to take two cases that may lead to a ruling on whether First Amendment rights must be shed at a business’s front door. The Court will hear arguments in the Spring of 2014, and a decision could come by the end of June.
Mennonites, Evangelical Christians plead their case
Hobby Lobby and Conestoga Wood Specialties are two of the for-profit businesses that have gone to court in an effort to overturn Obamacare’s mandate that all businesses offering health insurance to employees must help pay for coverage for abortion-inducing drugs, including those marketed as contraceptives. Strictly a Catholic concern? Hardly. The family that owns Hobby Lobby professes evangelical Christianity in the Protestant tradition, while the owners of Conestoga are Mennonites.
The Becket Fund, a public-interest law firm representing Hobby Lobby (Sebelius v. Hobby Lobby Stores, Inc.) issued a statement today in response to the Court’s decision to take the cases, reading in part:
“This is a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby. “We are hopeful that the Supreme Court will clarify once and for all that religious freedom in our country should be protected for family business owners like the Greens.”
In July, a lower federal court granted Hobby Lobby a preliminary injunction preventing the government from enforcing the HHS mandate requiring the family businesses to provide in the employee health insurance plan two drugs and two devices that are potentially life-terminating.
The Greens and their family businesses – who have no moral objection to providing 16 of the 20 FDA-approved contraceptives required under the HHS mandate and do so at no additional cost to employees under their self-insured health plan – then took the unusual step in October of joining the government in asking the U.S. Supreme Court to review the case, despite the family’s victory in the U.S. Tenth Circuit Court of Appeals.
The other case taken by the Court, Conestoga Wood Specialties v. Sebelius, comes from a different Circuit Court of Appeals than the Hobby Lobby case. The two cases were decided differently in lower courts, and now the Supreme Court will consider both at once.
“Accommodations” and questions
The HHS Mandate, part of the regulations accompanying Obamacare, raised religious liberty issues as soon as it was announced in early 2012. The Administration made what it called an “accommodation” with religious employers, with the definition of “religious employer” left to the federal government. When that proved insufficient to meet the concerns of Americans who take their religious liberty seriously, the Administration tweaked its “accommodations” further, until finally last June the Mandate was declared “final.”
As a result, lawsuits are abounding all over the country. Some have been filed by nonprofit organizations, some by educational institutions, some by entities affiliated with a church but legally distinct from it. Owners and managers in each case hold religious beliefs that conflict with the demands of the Mandate.
I can’t predict what questions will be asked during arguments before the Court. Some issues, though, will have to be decided eventually, either in these cases or one of the others now pending.
Does a religious liberty interest apply to an individual acting as owner of a business, as well as to an individual acting alone?
If the federal government calls a certain drug “contraceptive” when it is in fact abortifacient, will the First Amendment apply to an individual who recognizes that the government is acting in error?
Will the Court reach into the underpinning of the Mandate, and rule on the definition of contraception as “preventive care” under Obamacare?
The web site may be down, but the Mandate stands
Obamacare’s biggest roadblock to date has proven to be the inadequate web site that is interfering with signups for health insurance. Nothing about a lousy web site wipes out 15,000 pages of Obamacare regulations, including the Mandate.
According to the Becket Fund, there are 84 lawsuits challenging the constitutionality of the Mandate. It will take more than one Supreme Court decision to address them all. The first two cases have made it over a big hurdle, though. Stay tuned.
This encouraging news just arrived in my inbox, about a court decision released this afternoon. The source is CatholicAdvocate.com, one of many entities monitoring the court cases challenging the HHS mandate’s violation of the First Amendment.
Friday afternoon, the District of Columbia Court of Appeals – the second most influential court in America after the Supreme Court – ruled 2-1 in favor of two Catholic business owners challenging the Obamacare mandate requiring them to provide their 400 employees with health insurance that includes contraception.
According to a statement from Judge Janice Brown, “The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a health care plan.”
Judge Brown also expressed that “it is clear the government has failed to demonstrate how such a right – whether described as noninterference, privacy, or autonomy – can extend to the compelled subsidization of a woman’s procreative practices.”
Religious organizations have praised the ruling, but it is expected the Supreme Court will take up an appeal of this case and make a final ruling on the constitutionality of the mandate.
Take that into your weekend. This is good news not only for the Catholic business owners directly involved in this particular case, but Americans of any religion who find themselves subject to Obamacare’s mandate that we all pay for Sandra Fluke’s pills so she can get them at no charge.
That’s what this mandate is about, as I’ve written time and again and again: suppressing women’s fertility is a “preventive” service that must be provided with no co-pay under the terms of Obamacare, and this is supposed to override First Amendment rights of people who don’t see women as broken creatures who need fixing at public expense.
I’ve lost count of the court challenges to the mandate that are now pending. The Supreme Court will wind up deciding this, and I don’t have confidence that the First Amendment will prevail there. It prevailed today, though, for one case in one court. That’s a good day’s work.