A federal judge in Virginia has ruled, in a case brought by the state’s Attorney General Ken Cuccinelli, that the individual mandate in the health care reform law is unconstitutional. Judges in two other lawsuits filed in federal court in Lynchburg, Virginia, and in Michigan, have ruled the provision constitutional; the issue will likely make its way to the Supreme Court.
Last April, when I covered the Freedom Federation “Awakening” conference at Liberty University in Lynchburg, the claimed unconstitutionality of the provision was a major theme. Cuccinelli addressed the group about his lawsuit, and his views of the Commerce Clause, the constitutional provision used to challenge the mandate.
Now the American Center for Law and Justice, the legal group headed by Supreme Court litigator Jay Sekulow, is drumming up support for its amicus brief in the Michigan case, which is headed to the Court of Appeals, via an online petition for its “Committee to Declare Pro-Abortion ObamaCare Unconstitutional.”
If anti-choice groups can’t succeed in challenging the law in court, at least on the abortion question the new chair of the Energy and Commerce Subcommittee on Health, Rep. Joe Pitts, one of the most virulently anti-choice members of the House, plans to try to attempt a legislative rollback. That would be accomplished, if Pitts is successful, by banning federal subsidies to insurance companies that cover abortion services — even though the law requires anyone using federal subsidies to purchase insurance to write a separate check out of her own pocket for abortion coverage. Pitts was Bart Stupak’s strong ally in drafting the Stupak amendment that originally passed the House before the bill had to be reconciled with the Senate version, which required the separate payment system. (This is what is falsely portrayed, using hyperbolic rhetoric, by ACLJ as the “pro-abortion ObamaCare” or to Sarah Palin as “the biggest advance of the abortion industry in America.”)
At the time the law passed, policy analysts warned that nothing in the law would stop legislators from doing exactly what Pitts plans to do: to cut off federal subsidies to insurers that cover abortion, even if the portion of the premium that pays for the abortion coverage is paid by the policyholder herself, not with taxpayer money. If Pitts is successful, abortion coverage would become completely unavailable to anyone purchasing insurance, with a federal subsidy, from a company participating in the exchange created by the law.
The assertion, though, that the health care law permits taxpayer funding for abortion, has caused even an opponent of reproductive choice to lash out against an anti-choice group. Rep. Steve Driehaus, the Ohio Democrat who originally voted for the Stupak amendment and then incurred the wrath of the religious right by voting for the final bill, has sued the anti-choice group Susan B. Anthony List for defamation for claiming that he “voted for taxpayer-funded abortion.” Driehaus lost his seat to a Republican challenger last month.
On the broader question of the mandate, even before the health care law passed, though, Christian opponents of the individual mandate succeeded in obtaining an exemption for members of health care sharing ministries on religious grounds. One such group has claimed that as many as 11 million Americans are entitled to claim this religious exemption. Samaritan Ministries, one of the better-known HCSMs, says its purpose is “”to carry out the Biblical Great Commission of Matt[hew] 28:19 & 20, currently focusing on developing a Christian worldview among its members and the broader Christian community.” This, according Samaritan, is “opposite the ‘entitlement’ mindset that is endemic in our culture.”