On Monday, the Supreme Court signaled it might again reconsider the constitutionality of the Affordable Care Act (aka Obamacare). It ordered a lower court to weigh the law’s mandate on employers to support health insurance – including coverage of contraceptive services – for workers.
Last June, the high court upheld the law’s “tax” on individuals who refuse to buy health insurance. Now it wants a court to consider a complaint from Liberty University of Virginia that the mandate on employers violates religious freedom by requiring employers to have a role in funding health services such as abortion-inducing drugs.
This case is only one of more than 40 similar challenges to the law making their way through the federal courts. Any one of them could result in a Supreme Court ruling next year, potentially upsetting the law’s goal of providing universal health care.
While the abortion issue drives most of the suits, the heart of the legal arguments concerns the Obama administration’s attempt to define religion and to do it so narrowly as to give that definition authority over almost all employees.
The administration defines a “religious employer” as an institution focused solely on worship; that aims to inculcate values as its main purpose; that hires primarily persons of the same faith; and that serves primarily persons of the same faith. Opponents of this straitjacket definition rightly counter that even Jesus and his healing activities would not be seen as religious.
In its 5-to-4 ruling last June upholding much of the law, the court warned that the act must still meet other requirements in the Constitution. Four liberal justices even cited the need for the law not to interfere with “the free exercise of religion.”
And indeed, on Nov. 16 a federal judge sided with a Christian publisher, Tyndale House, granting it a temporary injunction against the Department of Health and Human Services in its enforcement of the mandate to cover abortifacients in the company’s health plan.
The Obama administration argued that the Christian business is not “religious enough” to be given an exemption. The judge, however, found that “the beliefs of Tyndale and its owners are indistinguishable.... Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s ownership structure is designed to ensure that it never strays from its faith-oriented mission.”
The court’s action follows a similar court injunction in July that temporarily protected a Colorado-based business, Hercules Industries, whose Roman Catholic owners don’t want to implement the mandate for their employees if it includes support of abortion services. Another court, however, ruled Nov. 19 that the Hobby Lobby company, run by evangelical Christians along Christian values, is not entitled to protection in its desire to avoid coverage of abortifacient contraceptives for its 15,000 workers.
Clearly the Supreme Court will need to sort out these competing rulings. Defining the line between religious institutions and religious-based employers is not a task left to the executive branch. Nor is defining religion itself.
Many churches fulfill their religious mission by hiring outside the faith and in ministering to others. Their work is not limited to worship confined only to the faithful. Many religious institutions, from schools to homeless shelters, find their purpose in working with members outside their community.
Under current law, for the government to control religious believers would require it to have a compelling state interest and that there are no alternatives to its goals. But that is not the case with health insurance or contraceptive services. The administration admits as much in providing exemptions to churches that fit its definition of “religious employer.”
The Supreme Court has long prevented government officials from trying to make religious determinations. “If there is any fixed star in our constitutional constellation,” wrote Justice Robert Jackson in a 1943 decision, “it is that no official ... can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The dictates of government need not conflict with the demands of faiths. Either the courts or Congress needs to make that a reality before the health-care law takes full effect in 2014.