Category archives: Health Care

Freedom Rising

by Robert Morrison

July 2, 2012

I was standing in the room where Abraham Lincoln drafted the Emancipation Proclamation when I heard the news. I was visiting the Lincoln Cottage with some good friends from Scottsdale, Arizona, when we got the word: The Supreme Court had upheld President Obama’s takeover of health care and John Roberts had written the majority opinion. I was shocked. My first thought: Now all Americans’ freedom is in danger. The good work of President Lincoln in jeopardy. A government of the people, by the people, for the people cannot be reconciled with an all-embracing health control regime that issues mandates.

Some conservatives are taking consolation from the thought that Roberts said no to using the Commerce Clause as a means to bind us by government edicts. This is cold consolation. If Congress can do this through its taxing power, what can it not do? All a Pelosi Congress would have to do is to define an activity, craft a penalty for Americans not engaging in that activity, and have it upheld under this precedent as a tax. How can this measure be a tax when those who wrote it, those who introduced it, those who defended it, and those who voted to pass it, all vehemently denied that it was a tax? And if it is a tax, why did it not have to originate in the House of Representatives? My copy of the Heritage Guide to the Constitution makes it clear the Founders wanted to keep “power of the purse” in people’s House as a check on the power of the more aristocratic Senate.

Is this too silly an obstacle? Is this too basic? John Roberts muffed the administering of the Oath of Office to President Obama. Might we imagine he overlooked this little detail, as well?

My friends are telling me that this volte-face by Roberts is “not as bad as Souter.” Really? I was in the room when Souter was approved by the Senate Judiciary Committee. I remember well looking over to pro-life friends as they shrugged their shoulders. Souter was a blank slate. This non-entity, this squirrelly recluse from the New Hampshire woods, was never a man in whom we placed any hope or confidence. And when this nowhere man was confirmed, I crossed my fingers, hoping that Gov. Sununu of the Granite State knew better than we did.

I was soon disabused, however. The Saturday after he was confirmed, my wife handed me a clipping from the Washington Post “Style” section. It said Justice David Souter had asked the clerk at the supermarket in his new Georgetown neighborhood if the can of tuna he had purchased was “dolphin safe.” Instantly, my heart sank and I knew that the fate of millions of unborn children had been sealed. Souter left Washington after twenty dismal years here, unsung and unhung.

We were assured by staunch Reaganauts that John Roberts was a committed and fearless constitutionalist. We did not expect that he would in every case rule as we would have him rule. Still, we respected his intellectual integrity. No one in 2005 dreamed that he would re-write the greatest power grab in American history in order to find it constitutional. The tortured logic of the Roberts ruling defies history and reason. And it gives every impression of having been cobbled together at the last minute in some feckless attempt to prove the Court is not partisan.

The Court should be partisan—for ordered liberty, for the rule of law, for the Constitution itself. What Roberts has achieved with this dog’s breakfast of a ruling will only hold the Court up for renewed scorn. After nearly forty years of Roe v. Wade, after the slaughter of fifty-five million innocents, one might have thought there were more important considerations in the minds of a learned jurist than the prestige of his “eminent tribunal.” Apparently not.

Many political commentators are giving Roberts credit for playing chess while we mere mortals play poker. He is being described as a clever Machiavellian who knows how to energize the conservative base for the November elections.

If that is true, why should we respect him as the honest and dispassionate “umpire” he vowed under oath that he would be? His duty was to rule whether this law could be reconciled with the Constitution we revere. He failed manifestly do to so. If any of the kudos bestowed on him as a supreme politician are true, the sense of betrayal would only be sharper. The British have a saying that applies here: “Too clever by half.”

We Americans might instead identify with Theodore Roosevelt’s keen disappointment in one of his chosen justices: “I could carve out of a banana a judge with more backbone than that!”

We have no choice now but to replace those who crafted this legislative power grab, repeal the health care takeover, and restore the Constitution as the the Great Charter that guarantees the blessings of liberty to ourselves and our posterity.

On Being Taxed For Just Standing There: The Roberts Opinion on the Obama Health Care Law

by Rob Schwarzwalder

June 28, 2012

Historian John Steele Gordon makes a compelling point about todays Supreme Court ruling in the Obama health care case:

Never before, that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you dont buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

This seems a proper interpretation of what Chief Justice Roberts wrote in the decision itself. Consider some of his opinions most compelling paragraphs:

… the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

The Affordable Care Acts requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

… it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congresss power to tax.

Where does Roberts find the linchpin of his argument that the mandate is simply a constitutionally justified form of taxation? He explains:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes … That, according to the Government, means the mandate can be regarded as establishing a conditionnot owning health insurancethat triggers a taxthe required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

Sure, redefine the meaning of terms like mandate and tax, and the phrase under that theory becomes like the accelerator on a juggernaut. The only consequence a phrase so pregnant and looming its sort of like the old line, Other than that, how did you enjoy the play, Mrs. Lincoln? Accepting that only consequence is like saying we should welcome incoming nuclear ordnance. It just makes a big noise, right?

In summary, heres how Mr. Roberts logic seems to operate:

(1) The mandate is, in fact, a tax.

(2) It is a tax on something people choose not to do, as noted by Gordon above.

(3) Congress has the constitutional authority to tax people at least those whose income Congress decides is adequately high - for something they elect not to do.

This is a phenomenal moment in constitutional interpretation: Now Congress has the power to tax a specific kind of volitional inactivity. This is amazing coming from a self-professed originalist like Mr. Roberts.

Those who believe the Constitution actually means what it says know that the taxing power of Congress extends only to those things (the Enumerated Powers) over which the legislative branch of the federal government has authority. How does something people decide not to do conceivably find its way into the Constitutions limited and specific list of federal duties?

As Gordon observes, the extension of this argument is both unlimited and frightening. If I choose not to exercise, will Congress force me to pay higher taxes because Im not doing enough to sustain my health? If I dont fly in airplanes, will I be taxed for failing to do my part for the American aeronautical industry? If I dont wear brightly-colored shirts, will I be taxed because I am insufficiently supportive of the U.S. vegetable dye industry?

However absurd such scenarios might now seem, their plausibility is strengthened by a Court that has decided that Congress possesses the constitutional authority to tax choices that involve conscientious disengagement from a particular form of conduct.

Abraham Lincoln once noted that we cannot escape history. Indeed. And when the history of this court and of our time generally is written, the new federal power - delivered with a whats the big deal? tone in the Chief Justices opinion - will be an inescapable chapter in the story of libertys diminution.

Last-Minute Switch on ObamaCare Ruling?

by Cathy Ruse

June 28, 2012

Having just sped through Scalia’s dissent, a legal friend of mine observes that it is somewhat unusual. It reads like a majority opinion. Ninety-five percent of it is devoid of any criticism of the majority’s opinion, reasoning, etc. The only criticism of the majority opinion is in a few short paragraphs at the end. Almost as if it were appended at the last minute. Typically, a dissent will critique the errors of the majority opinion point-by-point throughout. That is not the case here.

Was the Scalia opinion written as the majority opinion? Opinions are written and then circulated for changes. There would be no reason for Scalia to write a “majority opinion” unless his view had the votes to succeed and he had been assigned to be the author. Could it be that the case was going to come down the other way until Roberts, or someone else, was persuaded to change his or her vote?

Court Ruling Keeps Abortion Funding, Religious Freedom Violation, Health Care Rationing and Other troubling provisions

by David Christensen

June 28, 2012

In a surprise ruling, the Supreme Court upheld Obamacare, maintaining the “individual mandate” as constitutional, not under the commerce clause, but under the taxing clause.

The only part of Obamacare the Court limited was the law’s requirements on state Medicaid programs to expand or face a loss of all Medicaid funding.

So, here are the several pro-life and religious freedom problems that now stand with the Court’s blessing, and other items of concern (section references are to PPACA, P.L. 111-148):

I. The abortion subsidies and funding scheme stand (see chart of Obamacare abortion scheme for more detail)

  1. Federal subsidies for health plans that include elective abortion in state exchanges will continue. (Section 1303)
  2. The abortion fee will require every person in a plan that has abortion coverage will pay at least $12 per year even if they do not want abortion services. (Section 1303)
  3. Allowing direct funding of abortion through direct spending in community health clinics (Section 10503), and high risk pools (Section 1101).
  4. Subsidies for the government run “multi-state” plans remains even if they include elective abortion (Section 1334).
  5. There are No conscience protections against government discrimination against businesses, providers, or health insurers who refuse abortion. The limited conscience protection is from insurers against providers, but the government can discriminate against anyone who refuses to offer or refer for abortion if they chose (Section 1303).

II. Religious Freedom infringement through HHS contraception/abortifacient mandate, which narrowly restricts religious liberties to churches (Section 1001). Penalties for failure to comply could be $100 per day per employee for the employer (and insurer) who fails to offer “preventive care services”, including contraceptives, abortifacients and sterilizations free to the patient.

III. The Independent Payment Advisory Board (IPAB) remains in effect, an entity that will reduce Medicare costs through rationing health care (Section 3403).

IV. OTHER ISSUES:

  1. The “individual mandate” continues as a tax on people who do not buy health insurance, whether from an employer or in the individual market (Section 1501).
  2. The mandate remains on mid-size and large employers to offer “minimum essential coverage” —- which means plans that can’t exceed 9.6% of salary, and plans cover 60% of total health care costs (they don’t have to cover all the essential benefits). If employers don’t offer these, they face penalties (Section 1511).
  3. States are required to establish exchanges or, if they chose not to, the Federal government will establish and run them in the state (Section 1311).

SCOTUS Health Care Ruling Jeopardizes Future of Liberty

by FRC Media Office

June 28, 2012

FOR IMMEDIATE RELEASE: June 28, 2012

CONTACT: J.P. Duffy or Darin Miller, (866) FRC-NEWS or (866) 372-6397

Family Research Council Says Supreme Court Health Care Ruling Jeopardizes Future of Liberty

June 28, 2012

WASHINGTON, D.C.- Family Research Council (FRC) criticized the U.S. Supreme Court’s decision today to uphold the entire 2010 health care law through its decision in NFIB v. Sebelius.

FRC has been at the forefront of this debate over what can only be described as a government takeover of healthcare. FRC uncovered and rallied opposition to the taxpayer funding of abortion contained in the bill and after its narrow passage continued to fight the measure in the courts. FRC’s legislative advocacy arm, FRC Action, scored the votes on the Obama health plan in its annual scorecard, and aired a national TV/radio ad campaign against the legislation.

FRC submitted an amicus brief, authored by legal counsel Ken Klukowski in Florida v. HHS, that was cited by federal district Judge Roger Vinson in his decision to strike down the entire Obama health plan as unconstitutional. FRC submitted another brief, also authored by Klukowski, in NFIB v. Sebelius cited by the National Federation of Independent Business in its brief before the Supreme Court.

Of the decision, Family Research Council Legal Counsel Ken Klukowski, J.D., made the following comments:

The Supreme Court has today given the federal government unlimited authority to use its tax power to require Americans to engage in specific commercial activity. The obvious implication is chilling: Uncle Sam can make you buy anything, at any price, for any reason,” said Klukowski. “That’s why today, the American dream gave way to a real American nightmare. President Obama’s vow about ‘fundamentally transforming the United States of America ‘ was fulfilled. The Supreme Court essentially said it cannot articulate any limiting principle on the power of the federal government.

By ruling that the law is constitutional, the Supreme Court gave the federal government the power to order private citizens to enter into contracts with private organizations and give those organizations their money. This ruling fundamentally transforms the federal government from one of limited and specified powers in the Constitution to an all-powerful central government with plenary power over every area and aspect of Americans’ lives from cradle to grave.”

Of the Supreme Court’s decision, Family Research Council President Tony Perkins made the following comments:

Today’s Supreme Court decision will do serious harm to American families. Not only is the individual mandate a profound attack on our liberties, but it is only one section among hundreds of provisions in the law that will force taxpayers to fund abortions, violate their conscience rights, and impose a massive tax and debt burden on American families.

The Obama administration has created, for the first time in American history, new federal regulations that toss aside the constitutional right to religious freedom by forcing religious institutions and employers to pay for abortion-causing drugs, contraceptives and sterilizations.

It’s now time to replace those leaders who disregarded the constitutional limitations of their authority and the deeply held religious beliefs of their constituents, voting for the government takeover of healthcare. We must repeal this abortion-funding health care law and restore the Constitution to its rightful place,” concluded Perkins.

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Rep. Roby Also Questions Secretary Sebelius on Religious Freedom

by David Christensen

April 26, 2012

HHS Secretary Kathleen Sebelius received a number of questions on the contraception mandate this morning during the U.S. House of Representatives Education and Workforce Committee hearing “Reviewing the President’s Fiscal Year 2013 Budget Proposal for the U.S. Department of Health and Human Services.” In addition to Secretary Sebeliuss answers to Rep. Trey Gowdy (R,SC) which Jeanne blogged about earlier today, Rep. Martha Roby (R, AL) also questioned Secretary Sebelius about the contraception mandate.

Taking a slightly different tack from Gowdy, Rep. Roby asked Secretary Sebelius why religious organizations, such as the Roman Catholic television/radio station Eternal Word Television Network (EWTN) based in her Alabama district was not exempt from HHSs mandate. Secretary Sebelius blamed the Institutes of Medicine (IOM) for recommending contraception, abortifacients and sterilization, even though her department requested IOM to make recommendations, and she blamed the narrow exemption on states. She didnt say that most religious employers in states with narrow exemptions to their state contraception mandate can change their plans in ways to get around the mandate. Indeed, the federal mandate is more comprehensive and applies to plans even if they self-insure. The exchange between Sec. Sebelius and Rep. Roby can be viewed here.

Obamacare at the Supreme Court: An Analysis by Ken Klukowski

by Family Research Council

April 2, 2012

For a complete look at last week’s U.S. Supreme Court hearings on the 2010 healthcare law, see Ken Klukowski’s columns at Breitbart.com below. Klukowski, the director ofFRC’s Center for Religious Liberty, was present in the Court for each day’s proceedings. He authoredFRC’s amicus briefs in the various Obamacare lawsuits.

Day 1: Whether the Court has jurisdiction to decide the case

http://bit.ly/Hj2jmK

Day 2: Whether the individual mandate is unconstitutional

http://bit.ly/Hhu4iO

Day 3, morning: Whether the entire law must be struck down (Severability)

http://bit.ly/HgCrWZ

Day 3, afternoon: Whether Obamacare’s Medicaid expansion is unconstitutional

http://bit.ly/H4lZK2

Inside courtroom perspective during argument watching the legal left freak out

http://bit.ly/H2NXHq

Tony Perkins Responds to Pseudo-Compromise of Conscience Rights Mandate

by FRC Media Office

February 10, 2012

Video Transcript:

Hello, I’m Tony Perkins, president of the Family Research Council here in Washington D.C.

The White House was in damage control this week as the opposition to their latest mandate has reached historic proportions. Religious leaders have said if all else fails they would rather go to jail than comply with the Obama Administration’s mandate that religious organizations provide contraceptive, abortifacent drugs and sterilization as part of the healthcare coverage.

To pu this in the proper context, as I have spoken with Protestant and Catholic religious leaders, the opposition was not about contraception, but rather a violation of the religious freedom and conscience rights of Americans.

Hoping to quell the uprising the President announced that a compromise was being put forth that would provide the drugs and services to employees without the religious organization having to pay for them. The insurance company would provide the contraception to the employees free of charge. This service would not appear on the organization’s list of services, so they are not responsible for providing something they are morally and religiously opposed to. Right?

It’s not that easy.

How will the insurance company pay for this? The Administration says it is good business, because it saves the insurance company money in the long run because they don’t have to pay for the cost of pregnancies.

Really. If this is good for business and saves money, why didn’t the insurance companies do this years ago? Nothing has prohibited insurance companies from providing contraceptives.

Insurance companies are not charities. They will be offsetting the costs by increasing the administrative costs of organization plans, and religious employers will still have to pay for those plans.

So, goes the old saying, there is no such thing as a free lunch. So there is no such thing as a clear conscience when you violate the tenants of your faith, whether it is in writing or not.

One of the wisest men who ever lived once said: “If you say, ‘Surely we did not know this,’ Does not He who weighs the hearts consider [it]? He who keeps your soul, does He [not] know [it]? And will he [not] render to [each] man according to his deeds?”

It was true when Solomon wrote it, and it is true today.

This latest fig leaf from the Obama Administration is not only deceptive, this mandate remains fundamentally wrong and still violates the religious freedoms and conscience rights of Americans.

Even if this compromise were legitimate, it applies only to religious organizations. The freedom of religion was granted to every American, not just those who work at religious organizations.

This is yet another example of President Obama’s flawed view of our rights as Americans. He has repeatedly said he supports the freedom of worship. Freedom of worship is what happens within the four walls of a church or possibly under the roof of your own home.

The freedom of religious, which our Constitution serves to protect, recognizes our ability to lives our lives according to our faith, just as the Bible instructs us to do.

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