Obamacare liberties

Guarding The Liberties Of The People

Healthcare should be a secular concern, and the animosity expressed towards birth control by religious institutions thus far is a crucial example of why the separation of church and state is so valuable: churches have never guarded the liberties of the people.


Obamacare liberties


[dropcap]A[/dropcap]fter the Supreme Court decided to uphold President Obama’s healthcare reform legislation as constitutional late last month, debate over the ‘individual mandate’ remained animated, especially given the divided nature of the court’s ruling (five votes to four). The majority opinion held that Congress has the constitutional power to implement the mandate because, as Chief Justice John Roberts explained, ‘the mandate can be regarded as establishing a condition – not owning health insurance – that triggers a tax – the required payment to IRS’. However, while the Supreme Court decision focused primarily on the economic arrangements of the legislation, it is its social implications that are likely to remain an important area of constitutional debate.

Even prior to the court decision, the United States Conference of Catholic Bishops (USCCB) began a ‘Fortnight For Freedom’ from 21stJune in a bid to combat what it perceives as vulnerability in the wake of the administration’s healthcare reform. The organisation argues in a statement on its website that ‘our right to live out our faith is being threatened – from Washington forcing Catholic institutions to provide services that contradict our beliefs to state governments prohibiting our charities from serving the most vulnerable.’ This complaint refers in part to the government’s incorporation of contraception into health insurance requirements.

While the statement from the USCCB seeks to portray the government as directly targeting religious institutions with insensitive requirements, the administration has arguably remained consistent with the First Amendment that Congress shall make no law respecting an establishment of religion. The integrity of this amendment, the most important in any debate about religious freedom in the United States, has been maintained by the legislation, which does not specify or single out any religious establishments and focuses instead on medical and insurance-related issues. If anything, the executive branch has made extra effort to comfort believers, with a statement from the White House in February specifying that insurance companies rather than religious employers must provide birth control to employees for free.

A more recent announcement by the Obama administration means that self-insured religious institutions will also be required to provide birth control, but that this could be arranged by a separate body. Again, this announcement suggests that, far from threatening religious freedoms, the government has made what concessions it can to ensure that faith-based groups need not directly fund practices they do not agree with.

Given the broader constitutionality of the Affordable Care Act, the issue of birth control also serves as an example of how the Establishment Clause should be interpreted. The separation of church and state should seek to prevent one religious tradition from being prioritised over another, so that laws and rights can remain secular insomuch as they cannot favour one faith at the expense of an individual’s well-being. The birth control provisions of the healthcare law are consistent with the Constitution and should remain entirely separate from religion. In this case, the law is interested in the right of women to have access to free birth control. It does not seek to offend the beliefs of religious people, but, in keeping with the constitutional framework, it should make no special endeavour to appease them either. To do so could threaten the separation of church and state and undermine a broader humanitarian obligation to provide care and treatment to all those who need it.

Healthcare should be a secular concern, and the animosity expressed towards birth control by religious institutions thus far is a crucial example of why, ultimately, the separation of church and state is so valuable. An architect of the Bill of Rights, James Madison perhaps best underlined the rationale for this separation when he observed that, ‘In no instance have…the churches been guardians of the liberties of the people.’

7 thoughts on “Guarding The Liberties Of The People”

  1. Same is true with mosques. Taking care of religion and mixing it with state rules creates social problems indeed. Nevertheless, tings are improving and will get more momentum if all the people world wide stand up and regard it as a world problem not closed to the particular country.

  2. Excellent overview of the issue.  I thougt one sentence in particular elucidated the argument best:  “The separation of church and state should seek to prevent one religious  tradition from being prioritised over another, so that laws and rights can  remain secular insomuch as they cannot favour one faith at the expense of an  individual’s well-being.”  

  3. I applaud your desire to continue the dialogue on this topic. There are many fundamental issues that aren’t really addressed.
    Why must healthcare be secular?
    Who protects the people’s liberty?
    The Declaration of Independence states that governments are instituted among people to secure and protect the people’s self-evident and unalienable rights. It further states that these rights were given by our Creator, not the government. While it may be true that many churches may not protect liberty, our government must protect the church’s freedom to worship as it sees fit. Any deviation is a weakening of liberty.
    The Obamacare legislation was struck down as a mandate but re-written by SCOTUS as a tax. They are not permitted to legislate from the bench. So SCOTUS unconstitutionally held it constitutional. They also did not say what type of tax it is. The government is limited as to how it may tax the population. Is it a direct tax?… an income tax?… an excise tax?
    Health insurance is not healthcare. Obamacare provides government sponsored health insurance. The health insurance industry routinely allows overcharges to gain additional compensation based on savings to a company. This money exchange is built into the premiums but never seen by the consumer. Do you think government knows this and wants its cut?

  4. Thanks very much for the comments, much appreciated.
    Thank you for your comment, you’ve raised some important issues.
    Firstly, you are right to say that a ‘creator’ is mentioned in the Declaration of Independence, but importantly, the document omits any mention of specific religions. Both the Declaration and the Constitution reflect the deism of their authors, that is to say their belief that a deity exists and did indeed ‘create’, but does not intervene in the world in the same way that the monotheistic deity does. I think that the First Amendment to the Constitution, and the founding documents in general, reflect a similar lack of religious intervention. To illustrate this point, I would argue that if the Declaration stated that rights were granted by a ‘Christian creator’, for example, this would undermine the concept of rights granted to ‘all’ because it would necessarily give priority to one form of theism. 
    To answer your questions directly, I argue that healthcare should be secular because it should only be interested in the well-being and needs of individuals from a medical point of view. Catholic opposition to birth control, for example, is a position to which Catholics are of course entitled, but they should not be entitled to obstruct women who wish to access birth control. How does this relate to healthcare and the First Amendment? I argue that it would be unconstitutional for the government to make special arrangements in its legislation for one religious tradition, because this would be to make a ‘law respecting an establishment of religion’ and would thus breach the First Amendment. In addition, it is worth saying that one can be a ‘secularist’ and a religious person at the same time, in the sense that they believe religion and politics should be separate, but still adhere to a particular religious tradition.
    The question of who should protect the people’s liberty is a complex one, and I’d be interested to hear your thoughts. Arguably the most important point to make is that people in a secular capacity are just as able, if not more able, to discuss and establish rights and liberties as religious institutions are. I would argue that a legislature with the mandate of its people, absent of special religious interests, is probably in a better place to construct and develop a framework for protecting the health and liberties of the people than churches are. What do you think?
    On the issue of the actions of the Supreme Court, my reading is that while a number of constitutional arguments for upholding the individual mandate were rejected, the court found a more convincing argument that allowed the law to be upheld. This is explained on page 3 of the Supreme Court’s syllabus on the decision (http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf):
    ‘Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax.’ 
    The court found that it was possible, and upheld the law as constitutional under the power of Congress to ‘lay and collect Taxes.’ 
    On your final point about overcharges, I think that’s really interesting and I’d like to find out more about it. Could you recommend any reading on this?
    Thanks again for your comment,

    1.  @Patricksmcg
      Thanks Patrick… you’re very kind. This is great dialogue.
      In answering the questions directly, you compel me to think of the deeper philosophical questions.
      When you say “only be interested in the well-being and needs of individuals from a medical point of view”, you have to ask… how (and by whom) is “well-being” defined and determined? Is there a moral basis for that “interest”? If so, what is the basis for morality? Ultimately, with ACA, un-elected bureaucratic administrators will be making the decisions. Even if they are experts, they are still human. Humans are flawed. How many expert predictions have you seen fall short of what actually happens? Why should we expect this to be different?
      Your point on Justice Roberts remark is valid. He looked for a way to make it constitutional and found it. However, the court doesn’t address the structural issues of the legislation as a tax. Just to note a couple, and like I’d mentioned prior, what type of tax is it? Further, if it is a tax, it’s supposed to originate in the House of Representatives… this legislation originated in the Senate. To reconcile the structural inconsistencies, shouldn’t SCOTUS have struck down the legislation with the caveat that the legislation could be re-written by Congress in a form more consistent with the Constitutional requirements?
      I agree with you on the complexity of who should protect individual liberties. It’s an important but rarely discussed topic. Prior to the 17th Amendment, State Legislatures were the “sure guardians of people’s Liberty”, according to James Madison. It’s debatable today.
      Health insurance is currently restricted to State boundaries. As far as health insurance overcharges, only 30 of 50 States have medical cost transparency requirements or laws. If costs aren’t transparent, is there room for abuse? If costs are transparent, people must still verify they’re being charged appropriately. Does anyone actually do that? If they don’t, is there room for abuse?

      1. @johnjuanjohnjuan
        Apologies for the late response.
        Again, some really interesting questions. On the question of defining well-being, the neuroscientist Sam Harris has written a book entitled ‘The Moral Landscape’ (http://www.samharris.org/the-moral-landscape) in which he argues that science can provide an objective framework for determining morality and human well-being. Whether or not we find this argument convincing, I think it is at least a step in the right direction, away from the notion that there must necessarily be a religious component to discussions about morality and well-being. I’d be interested to hear your thoughts on this approach. Moreover, Harris accepts your point about human flaws. He argues that there may be many peaks and many depths on the ‘moral landscape’, and that human beings navigate this terrain in search of the most conducive moral framework. Definitely worth a read if you’re interested in this kind of debate.
        On the Supreme Court decision, I agree that there are a number of important points here that I hope further commentary and analysis on this issue will explore. The same can be said for the question of overcharges and how to rectify the problems you’ve identified.
        On the question of individual liberties, it may be that Madison’s view of the state legislature no longer applies, but I think he was right to support a secular framework for the protection of these liberties, and I would further argue that it is this secular framework to which we should aspire.

  5. Dear Mr McGhee, I in no way mean to belittle your argument; but it seems to me as this issue is utterly superfluous with regard to grass roots provision of health care. The reason the obamacare legislation was nearly pulled was solely financially motivated, most definitely not because a few Bishops got together and decided to lobby a little. Will the doc prescribing to the mother of three living in the ‘ghetto’ give a damn whether or not a bishop somewhere in the upper echelons of life whom they have utterly zero ties to care that they may be offending catholic principles by prescribing microgynon [the most commonly used contraceptive pill costing approx. £0.67/3 month cycle]. No. They will not. And neither will the mother as it costs tuppence. All this talk about issues that don’t touch people in a real way is necessary and detracts from the real issue. They is no bloody doc in these ‘ghetto’s’ to do the prescribing of the god damned bloody pills. And whatever other pills the aging, poor, population require. That is what obamacare is about. And trust me, every black and hispanic person has blood pressure problems by the time they hit 60 and there aint no Bishop in the land that would object to that.

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