Opinion: Columnists

Sunday Reflection: Obamacare vs. the Constitution: Part Deux

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Is the Supreme Court ready to go a second round with Obamacare? Last week, the justices signaled that they just might be.

That's good news for opponents of the law -- and bad news for those still struggling to defend it. And it's a reminder of how much is at stake in the battle over the president's health care reform effort.

When the high court ruled this summer that Obamacare's individual mandate was constitutional under Congress's power to tax, many thought that the legal battle was over. But that's not the case. At the end of November, the supremes ordered a lower court to reopen an old challenge to the law. If the suit is successful, Obamacare could be back for another hearing before the nation's highest court by the end of 2013.

The challenge comes again from Liberty University, a Christian school in Lynchburg, Va. Like the states that had their day in court earlier this year, Liberty challenged the law's individual mandate.

But it also challenged Obamacare's mandate requiring employers with 50 or more employees to provide health coverage starting in 2014 -- and with it, provisions that relate to coverage of contraception and abortion. These components of the law were left untouched by the Supreme Court's ruling this past summer.

Initially, Liberty's challenge seemed to be headed nowhere. The Fourth Circuit Court of Appeals said it could not adjudicate the case because the provisions in question had not yet taken effect. In other words, Liberty did not yet have standing.

The Supreme Court's decision to uphold the individual mandate before it took effect, though, cast the Fourth Circuit's judgment against Liberty in doubt. So the university asked the high court to reconsider its case against the employer mandate. The supremes agreed and have ordered the Fourth Circuit to hear the challenge again.

Liberty's case is important because it highlights the many ways in which Obamacare restricts important, constitutionally protected freedoms.

The school's challenge comes in two waves. First is a facial challenge of the employer mandate on the grounds that Congress is not authorized by the Constitution's Commerce Clause to enact such a requirement.

If it succeeds, that challenge alone could spell the end of Obamacare. Without the employer mandate, much of the law's coverage regulations would cease to be viable.

After all, Obamacare's many mandates are sure to drive up the cost of insurance. Without a huge pool of employers to counterbalance the law's upward pressure on premiums, the price of insurance would climb even higher -- causing many firms to bag coverage altogether and leave their employees to find coverage on the law's subsidized health insurance exchanges. The federal treasury -- and by extension, taxpayers -- can hardly afford such an outcome.

Liberty's lawyers are also arguing more narrowly that because the employer mandate could require them to pay for insurance coverage for abortions, it's unconstitutional "as applied" -- meaning as it applies to them and other religious employers and institutions.

Fines paid by employers that don't provide coverage would fund the insurance exchanges, which don't prohibit abortion coverage.

In other words, by spending Liberty's money on insurance plans covering abortions, Obamacare would force the university and other like-minded entities to violate their religious beliefs.

One need not be a religious conservative to be worried by these requirements. The free exercise of religion and the freedom of association, including religious association, are basic freedoms explicitly protected by the First Amendment. They are fundamental tenets of American society, for both the religious and secular among us.

For Liberty, a devout religious institution organized around a Christian worldview, the choice would not simply be between providing coverage and paying a fine -- but between complying with the law and funding activities "contrary" to its "Christian mission."

The employer mandate is constitutionally dubious under the terms of the Commerce Clause, and by shredding the First Amendment's protections of religious freedom, it's doubly so. Americans should hope that Liberty's day before the Supreme Court comes soon.

Sally C. Pipes is President, CEO and Taube fellow in fealth care studies at the Pacific Research Institute. Her latest book is "The Pipes Plan: The Top Ten Ways to Dismantle and Replace Obamacare" (Regnery, 2012).

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