What the ObamaCare ruling means for the HHS mandate
The U.S. Supreme Court decision upholding ObamaCare (while declaring it constitutional under Congress’s power to tax rather than its power to regulate interstate commerce) has largely been greeted by Catholics with a shrug of their shoulders. The general attitude is summed up by Mark Shea: “the central issue (as far as I am concerned) remains to be tested: Catholic conscience and the damnable HHS mandate.”
As much as I hate to disagree with my friend Mark, I’m afraid that yesterday’s ruling means that the prospects for any compromise over, or outright reversal of, the Obama administration’s contraception mandate are growing dim. As I pointed out in my first post on the Fortnight for Freedom, if all or most of the ObamaCare legislation had been declared unconstitutional, the HHS mandate would have fallen with it.
The flip side is that, now that ObamaCare has been found constitutional, the administration has received a political boost that it will use to press its case on the contraception mandate. Between now and the presidential election in November, President Obama has no need to try to compromise on this issue—and, indeed, any attempt at compromise that he might try to make would hurt his electoral prospects among those voters most in favor of both ObamaCare and the HHS mandate. Such voters are, in fact, the core of his support; he would be foolish to do anything to upset them now.
But it’s not all up to the administration; the U.S. Supreme Court will eventually rule on the contraception mandate itself. Does yesterday’s decision give us any indication how the Court will rule?
Directly, no. Indirectly, though, it may tell us a lot.
The best possible spin that can be put on Justice Roberts’ decision in the ObamaCare ruling is that he has deferred to Congress and the administration. His own opinion makes it clear that, as the legislation is written, the ObamaCare individual mandate (the requirement that everyone must purchase health insurance) is unconstitutional. And yet Roberts, along with the four most liberal justices on the Court (Ginsburg, Breyer, Sotomayor, and Kagan), declared the legislation constitutional anyway, by finding another justification for the individual mandate in Congress’s power to “lay and collect Taxes.”
That tells us quite a bit about Chief Justice Roberts’ understanding of the role of the Supreme Court, and it gives us some clue as to how he may approach the contraception mandate. The four justices who joined Roberts in his decision are likely to vote to uphold the HHS mandate, and of the remaining justices Anthony Kennedy (a Catholic) is shaky at best. If Roberts decides to defer to Congress and the administration, even if he has to bend over backward to do so (as he did in the ObamaCare ruling), the Court could uphold the contraception mandate by a vote of 5-4 or 6-3.
Some bishops who gave qualified support to the Obama administration’s efforts at healthcare reform have, in the wake of the contraception mandate, expressed a sense of betrayal, and a few have even suggested that it may have been a mistake to support ObamaCare. Catholics who think that the two issues—the contraception mandate and the legislation that allowed the Obama administration to impose the contraception mandate—can be treated separately may be in for a rude awakening when the Court addresses the contraception mandate next term.