Inadequate conscience protections may lead the Supreme Court to reject the 2010 health care law, a Jesuit priest and legal scholar predicted after three days of arguments in the historic case.
“I think there are sufficient problems with the bill, as passed, that the justices could say: ‘This is unconstitutional,’” Jesuit Father Robert J. Araujo, told Catholic News Agency on March 29.
“This is a very complicated law, and the more we examine it, we see more problems and concerns,” noted Fr. Araujo, who holds the John Courtney Murray Professorship at the Loyola University Chicago School of Law.
“I tend to think that’s on the minds of the lawyers and the justices: ‘Are we going to see more litigation, if we don’t resolve these conscience-protection and other issues?’”
“That’s why I see an opportunity for the court to say: ‘Look, there are some serious problems with this legislation. Congress has done a lot of work, (but) it’s their responsibility to write a law that will pass constitutional muster and judicial review.”
The court’s March 26-28 period of questioning focused on the law’s “individual mandate,” which requires virtually all citizens to obtain health insurance.
Most observers believe the law’s fate will hinge upon whether the requirement is judged to be a means of regulating interstate commerce – as the Obama administration maintains – or an unconstitutional overtaking of states’ power by the federal government.
Fr. Araujo thinks the law is unlikely to be upheld either fully or in part.
“Having followed the arguments and the questions, I don’t think the likelihood of a complete vindication is very strong.”
Although the main issue before the court is the individual insurance mandate, the Jesuit professor thinks other aspects of the law will factor into the court’s decision as well – including the widely-criticized contraception and sterilization mandate, a federal rule made as part of the health care law’s implementation.
The Supreme Court justices, he said, realize that there are constitutional concerns surrounding “who exactly is going to be paying for what” under the law, and “how that might affect their own moral concerns, which are constitutionally protected.”
If the law is upheld, the justices could reasonably expect challenges to continue on different constitutional grounds – including the free exercise of religion, a factor in eight states’ current lawsuits against the law’s contraception mandate.
The result could be “a repetition of what we’ve seen so far,” with various lawsuits advancing in federal court seeking “review of the legality of certain provisions” in the health care law.
Health care, the priest and professor noted, is a pressing issue that seriously affects millions of people.
Although the Church regards health care as a right that should be secured for all members of society, opinions differ as to how this should be achieved in practice. The Catholic notion of “subsidiarity” requires that problems be solved by the lowest level of competent authority.
Some Catholic critics of the health care law have invoked this concept as a criticism of the federal health care reform, which they say could have been better handled by the individual states.
“I think in its own way, the U.S. Constitution – under the Tenth Amendment – in part addresses this important concept of subsidiarity,” Fr. Araujo said, citing the provision by which the powers not given to the federal government by the constitution “are reserved to the states respectively, or to the people.”
“What might be proper for Florida may not work in California,” the Loyola University professor noted. “The states do have a proper, lawful role in determining what is good and what is not for their citizenry. That’s how I see the subsidiarity rule playing out in the U.S. Constitution.”