Bishops urge Congress to fix health law flaws after high court decision

Supporters of the administration’s health care reform law demonstrate in front of the U.S. Supreme Court building in Washington June 28. The nation’s high court upheld the Patient Protection and Affordable Care Act as constitutional but placed some limit s on the federal government’s ability to terminate states’ Medicaid funding. (CNS photo/Joshua Roberts, Reuters)

WASHINGTON (CNS) — The U.S. Supreme Court’s June 28 decision upholding the health reform law makes it even more urgent for Congress to act to fix the law’s “fundamental flaws” on abortion funding, conscience protection and immigrants’ access to health care, the U.S. bishops said.

The court found that although the individual mandate in the 2010 health reform law does not pass constitutional muster under the Commerce Clause of the Constitution, it can be upheld as an acceptable exercise of Congress’ taxing powers.

In a 65-page opinion announced by Chief Justice John Roberts, five members of the court upheld the Patient Protection and Affordable Care Act in full but limited the federal government’s right to withhold its share of Medicaid funding from states that do not expand the health program for the low-income and disabled as mandated by the law.

“The U.S. Conference of Catholic Bishops has not joined in efforts to repeal the law in its entirety, and we do not do so today,” said a USCCB news release issued shortly after the decision. “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 law’s) fundamental flaws.”

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

Read: NCBC Response to the June 28 Ruling of the U.S. Supreme Court Upholding the Affordable Care Act

Sister Carol Keehan, president and CEO of the Catholic Health Association, said she was pleased that the health care law “has been found constitutional and will remain in effect.” The Daughter of Charity noted that CHA had submitted friend-of-the-court briefs urging the court to find in favor of the individual mandate and the Medicaid expansion.

“In the coming weeks and months, we will continue working closely with our members, Congress and the administration to implement the ACA as fairly and effectively as possible,” she added.

However, CHA has agreed with the bishops in urging the government to expand its definition of religious employers who are exempt from the requirement to provide contraceptives and sterilization free of charge to their employees.

Joining Roberts in the majority opinion were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, although Ginsburg differed from the other four on whether the mandate was constitutional under the Commerce Clause.

“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 Roberts opinion says. The mandate “is therefore constitutional, because it can reasonably be read as a tax.”

Dissenting were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, who would have overturned the entire law as an unconstitutional violation of the Commerce Clause.

By forcing those who are young and healthy to purchase health insurance, the law compels those who do not wish to participate in a particular marketplace to do so, the dissenters said.

“If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in (Alexander) Hamilton’s words, ‘the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane,'” said the dissenting opinion, written by Scalia.

The decisions do not affect other lawsuits against the health reform law’s requirement that most religious employers must provide contraceptives, including some abortion-causing drugs, and sterilization to their employees at no cost. Those cases are still in lower courts and have not yet reached the Supreme Court.

But Charmaine Yoest, president and CEO of Americans United for Life, said the Affordable Care Act “forces an abortion agenda on the American people unlike anything seen since Roe v. Wade,” the 1973 Supreme Court decision that lifted most state restrictions on abortion.

Criticizing the law’s “numerous anti-life provisions and mandates,” Yoest said, “Congress must repeal these provisions and ensure that any health care law respects life.”

The opinions issued by the court June 28 actually involved four separate challenges to the constitutionality of the health reform law. The court first had to decide whether the Anti-Injunction Act, which says no tax can be challenged in court before it is due, precluded a challenge to the Affordable Care Act until after the individual mandate takes effect in 2014. The majority decided that it did not.

The next question was whether the individual mandate — also called a “shared responsibility payment” — exceeded Congress’ authority to “regulate commerce” or to impose taxes. Roberts played the key role in deciding that, siding with the dissenters on the commerce question but with the majority on the tax question.

If the mandate had been overturned, the court would have had to decide whether the entire health law must fall if one section does — the so-called “severability” issue. But the affirmation of the mandate made that question moot.

Finally, the court faced the question of whether Congress could penalize states that opt out of the law’s requirement to expand their Medicaid programs. In its early years the expansion is mostly funded by the federal government, but states are expected to take over funding the coverage in later years.

The court ruled that the federal government cannot threaten states with the loss of their existing Medicaid funding if they do not participate in the expanded Medicaid program.

“It was my fervent hope that today’s ruling would go far enough to strike down the HHS mandate and its tremendously problematic assault on religious freedom,” said Ron Johnson, executive director of the Arizona Catholic Conference. “While that did not happen today, I remain confident that these provisions will ulitimately be held unconstitutional in the upcoming wave of litigation under way in this regard.”

Dr. William Chavira, a Phoenix-based Catholic obstetrician-gynecologist, said he was shocked by the decision. “Despite all the moral issues, the fact that a government would coerce it’s citizens into buying unethical health care under the guise of a tax — it’s baffling,” he said. “It’s hard to imagine this could happen in our country.”

Chavira noted that the Catholic Church is a strong proponent of providing health care, but said the Affordable Care Act doesn’t pass muster because it requires institutions to pay for contraception, abortion and sterilization; because of its lack of adequate conscience protection; and because it does not address the issue of immigrants — the millions of undocumented that will not have health care even after this.

“The most important thing is to pray,” he said. “Christ has won the victory, we only need to cooperate with it. Before we are Americans, we are Catholics.”

Mike Phelan, director of the diocesan Marriage and Respect life Office, also called on Catholics to ask for God’s help.

“The act stands, under the power of congress to tax, according to the Court,” he said. “Therefore, all the provisions we are most worried about — the HHS abortifacient-contraception-sterilization mandate to insurers; the abortion funding provision, etc. are still standing — pending lawsuits will address these issues and hopefully strike these intrinsic evils from the law, but we have to pray more than ever. The Fortnight for Freedom continues.”

John Jakubczyk, a Phoenix attorney and long-time pro-life activist, was disappointed and surprised by Roberts’ argumentation. The decision should motivate Christians and people of good will to make their voices heard on Election Day, he said.

“We must appeal Obamacare,” he said. “We have our work cut out for us. We have to elect people who are pro-life and who believe in religious liberty.”

In March, the Obama administration issued a final rule under the health care act that requieres many health insurers to charge all enrollees for elective abortions, according to the U.S. bishops. “This requirement has surprised many people, who thought that they had been assured the new health care reform act would not make taxpayers fund abortions,” they said in a statement.

The U.S.  bishops have advocated for health care reform for nearly a century. The Church believes in providing life-affirming health care for all, “especially the poorest and most vulnerable,” the bishops said in a statement. In addition to allowing federal funds to pay for abortions, the bishops opposed the passage of the Affordable Care Act because it “fails to include necessary language to provide essential conscience protection, both within and beyond the abortion context.”

“The lack of statutory conscience protections applicable to [the act’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,” the statement said, in part.

The act also fails to treat immigrant workers and their families fairly, according to the bishops. The reform “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.”

“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,” the bishops said. “We therefore continue to urge Congress to pass, and the Administration to sign, legislation to fix those flaws.”

— By Nancy Frazier O’Brien, Catholic News Service (J.D. Long-Garcia contributed to this story from Phoenix.)