JuridicsUSA: Christian employers: Lined up for exploitation by the Fluck Doctrine and Obama's Affordable Care Act

The advent of an active conflict between some advocates for women's rights and some advocates for the religious rights of employers is a sign of the times.  The women's movement, if it be that, which wants to charge the public purse and tax-payers for recreational sex expenses (the Fluck Doctrine) has gone to bizarre doctrines of law.  The original movement of Second Wave Feminism (1960s to 1980s)  in North America coud in its day come up with some corkers, but these activist women weren't entirely statist-minded, as I recall.  As more and more young women joined that movement and the Third Wave formed in the 1990s continuing into the present, they had an opportunity to found trusts, endowed funds, and foundations to provide abortions to any women who after considering her options, choose to abort her unborn without coercion either way.  This woud have been a radical non-statist approach, but beyond the social imaginary of the women of those times.  The willingness to form communal associations to secure to all women and any women free access to abortion, without coercion but really free choice, just wasn't present.  Besides being the period most likely to be considered a women's day in history, it was also saddled with the ethos of the Me Generation — which meant mature communal associations coudn't evolve under women's guidance to solve the abortion issue.  Instead, in Canada with no law at all to govern the situation, the freedom to exercize her sphere sovereignty over her own body and to take responsiblity for herself, with wise financial planning ($1 a month woud have endowed such foundations massively over time), thru sisterly organization for future exigencies, but that chance was lost.  There was no sense of sisterly communal calling in that regard.  Instead, go into politics and make the state omnicompetent over women's bodies and medical doctor's procedures.

So the responsiblity passed to the state, however reluctant, but before that possibility coud be made legal and realistic, the aborters for hire appeared on the scene.  In Canada, it was the mass abortionists under the leadership of the non-woman (must I say it?), Dr Henry Morgantaler, who found a managerdial-capitalist niche for himself.  In the USA, it was the agency founded on genocide of the poor, Planned Parenthood, that came to occupy that niche most widely.  They exemplify how it was determined, the structuration of what so many women woud have to resort over the decades afterward.  This put the means of getting abortions out of the hands of the broad spectrum of women and made them captive, lacking their own network of foundation-funded clinics, to Morgantaler Abortion Clinics and Planned Parenthood's one-way "counselling."  The latter soon learned in many places to get its money from state and Federal government.  So, the Fluck logic is simply vacuum-logic from the detritus of the statist solution to everything female.

Now comes a group of Christian employers who don't want to be absorbed into this alien logic; it seems thedy don't want solutions to the problem of accessible abortion care, but they certainly can't catch up with the enormity that the Fluck Doctrine enshrined in the Affordable Health Care Act now imposes on them.  They woud like help from the courts, but it's hi-ly unlikely they will get any.

— Lawt, refWrite Frontpage juridics newspotter, analyst, columnist

Washington Post (Jan22,2k13)

Christian employers challenging contraceptive provision of health care law, reject idea of any penalties

Joe Raedle/Getty Images -    As Supremes refuse relief to Christian employers who don't want to pay for employee's contraception under Obama's Affordable Care Act, protesters hold signs and pray during a gathering billed as the “Stand Up for Religious Freedom Rally” in MIami in June 2012.

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by Robert Barnes, Published: January 20

Enjoy the festivities, President Obama, and while you’re on the grand stage Monday, it might be wise to make nice with the assembled Supreme Court justices.

The next legal challenge to the Affordable Care Act is moving quickly to the high court, and bringing potent questions about religious freedom, gender equality and corporate “personhood.”

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Challenges to ‘contraception mandate’

The issue is the health-care law’s requirement that employers without a specific exemption must provide workers with insurance plans that cover a full range of birth-control measures and contraceptive drugs.

Inclusion of the no-cost contraceptive coverage for female workers has always been a controversial part of the legislation. It has now sparked more than 40 lawsuits around the nation involving more than 110 individuals, colleges, hospitals, church-affiliated nonprofits and private companies.

The cases involving those with religious affiliations are in limbo, as the Obama administration works on regulations that might provide a compromise. In a case involving two such institutions — Wheaton College in Illinois and Belmont Abbey College in North Carolina — a panel of the U.S. Court of Appeals for the D.C. Circuit is requiring administration officials to report by mid-February about the new rule, which is to be issued by spring.

At the same time, “the business cases are moving 

quickly,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, one of the 

groups coordinating the challenges to the law. Duncan said he believes the cases will be decided in 

lower courts in plenty of time for the Supreme Court to decide whether to review the issue in its term 

that begins in October.

By Duncan’s count, there are 14 cases filed by business owners who say the law forces them to choose between running their companies and following their religious beliefs. In nine of those cases, courts have issued injunctions until the conflicts can be decided on their merits.

The cases differ by what the business owners say they are willing to provide — some say all contraceptives would violate their religious beliefs, others object only to abortifacients such as the “morning-after pill” and intrauterine devices. But all rely on protections in the First Amendment regarding free exercise of religion and in the Religious Freedom Restoration Act (RFRA).

The 1993 act prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive method of achieving the interest.

No court of appeals has reached the merits of the challenges, but two — the 7th and 8th circuits in Chicago and St. Louis respectively — have granted business owners injunctions, and two — the 6th in Cincinnati and the 10th in Denver — have denied them.

And along the way, those decisions give a pretty clear indication of the fight ahead.

The most promising for the challengers is a ruling by a three-judge panel of the 7th Circuit. Cyril and Jane Korte, owners of K & L Contractors, said the new law offends their Roman Catholic beliefs. They wanted to replace the insurance program they offered their workers, which they found provided contraceptive services, with one that did not.

Juridics: Individual Mandate: Niceties of the interpretation of the Commerce Clause before the Supreme Court

The American Spectator (December 29, 2k11)
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The Bell Tolls for Obamacare

By PETER FERRARA on 11.23.11 @ 6:08AM

The key to the Supreme Court's upcoming ruling will be clear recognition of constitutional alternatives to Obamacare.

On November 14, the Supreme Court granted the Writ of Certiorari to hear the appeal of the cases testing the constitutionality of Obamacare. The resulting decision will mark an historic watershed not only in the restoration of constitutional jurisprudence, but in fundamental, market reform of the entire entitlement state.

Historic Decision BrewingI write serving as the General Counsel of the American Civil Rights Union (ACRU), as one of several current positions. The ACRU was started by former top Reagan aide Robert Carleson, with former Attorney General Ed Meese as Chairman of the Advisory Board, along with other former Reagan Justice Department officials, besides myself as a former Reagan White House staffer.

In my capacity for the ACRU, I wrote and filed amicus curiae briefs on behalf of the ACRU in both the district court and the circuit court in the challenge by 26 states in the 11th Circuit that resulted in an order striking down the entire Obamacare law. I also wrote and filed ACRU amicus curiae briefs in the challenge by Virginia Attorney General Ken Cuccinelli in both the district court and the circuit in the 4^th Circuit. The district court found the individual mandate unconstitutional, while the circuit court ruled that Virginia had no right to bring the case (two Obama appointed judges on the three-judge panel).

I am predicting that the Supreme Court will strike down the entire Obamacare law on a 5-4 ruling. That starts with the individual mandate, which the Court will find unconstitutional because it has reiterated several times in recent cases that it will enforce some limit on the Commerce Clause as justification for federal regulation, reserving the role of police power to regulate for the general public good to the states. Virtually all the judges in all the lower court cases concluded that there was no precedent anywhere in U.S. history upholding a law requiring citizens to purchase a good or service. Not participating in interstate commerce by choosing not to buy a product or service leaves no basis for regulation to compel such participation under the Commerce Clause power to regulate interstate commerce.

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The fate of that argument before the Supreme Court is indicated by the thorough opinions of District Court Judge Roger Vinson in the 11th Circuit, District Court Judge Henry Hudson in the Fourth Circuit, and the majority of the 11th Circuit panel striking down the Obamacare individual mandate. These judges are good indicators as to how similarly minded Justices Scalia, Thomas, Alito and Chief Justice Roberts will come out.

While the decision of simpatico Judge Laurence Silberman upholding the Obamacare mandate is somewhat troubling, that reflected Silberman's poorly reasoned conclusion that he was bound as a lower court judge by the Supreme Court's 1930s precedent ofWickard v. Filburn. That case did not involve a regulation compelling anyone to purchase anything, but rather a defendant who had made an affirmative decision to take action to grow and use wheat in his farm operations, with the regulation applying directly to that action. That illogical blunder is not characteristic of Silberman's usually brave and far sighted work.

The Supreme Court will strike down the entire law as Judge Vinson did because even the government is arguing that Obamacare is unworkable without the individual mandate. Obamacare requires insurers to issue insurance coverage to everyone who applies at just standard rates, regardless of how already sick and costly they are when they first apply. Without a mandate requiring everyone to buy such insurance and so contribute to its costs, the healthy will just wait until they are sick and then buy the guaranteed insurance, avoiding any contribution to the costs (imposed by others) during all their healthy years. That will leave insurers covering primarily a very sick and costly pool, requiring very high insurance rates for financial survival. Those high rates will cause even more of the healthy and lower cost workers to drop out, resulting in an admitted financial death spiral for the insurers.

What makes this predicted legal result especially likely is that the Obamacare law overconfidently excluded a traditional severability clause, which provides that if any part of a law is found unconstitutional, the rest would remain intact. The drafters in their full Obama era arrogance thought excluding the clause would leave the courts less likely to strike down the mandate, which could then legally threaten the entire law. The drafters were so certain that the law would be so wildly popular, just like other overpromised entitlements, that no court would dare do that. But with strong public majorities so virulently detesting the law, the lack of a severability clause just assures that the Court will strike down the unworkable law.

Of course, the law will not work with a mandate enforced with a weak penalty anyway. The healthy will pay the penalty, just a fraction of the costly regulatory mandate, avoiding the bulk of the costs until they are sick. That will happen with the employer mandate as well. We see this practice under the quite similar Romneycare in Massachusetts.

The Key to the CaseI believe the key to winning the fifth majority vote of Justice Kennedy is the argument that striking down Obamacare does not mean there is no constitutional way for a health care safety net to assure no one will suffer from lack of necessary medical care. That argument has been a specialty of the briefs I have filed for the ACRU based on my own direct role in health policy, going back to the first paper proposing health savings accounts which I co-authored with John Goodman almost 30 years ago.

A complete health care safety net assuring essential health care for all can be achieved with no individual mandate and no employer mandate, for just a fraction of the cost of Obamacare, actually sharply reducing government in the process. That starts with the provision already in federal law, stemming from the Kennedy-Kassebaum legislation of the 1990s, providing for guaranteed renewability. That means if you already have health insurance, you cannot be terminated because you become sick. That is what the insurance insures against after all, so such termination would actually be fraud, as state law across the country recognized before Kennedy-Kassebaum. Under this regulation, insurers also cannot discriminatorily raise rates for those who become sick while insured. This law ensures that if you have health insurance, you will be able to keep it as long as you continue to pay the premiums.

The second component of a health care safety net would involve block granting Medicaid back to the states, just as was done with the enormously successful reform of the old AFDC program in 1996. Each state would then transform their Medicaid programs into a premium support system which would provide the assistance necessary to purchase essential health insurance for those who are too poor to pay for it otherwise. Each state would decide how much assistance is necessary at each income level in their state to assure the poor could afford such essential coverage.

This would greatly benefit the poor because Medicaid today is structurally an institution serving to deny the poor essential health care just when they are the sickest and most in need of such care. That is because Medicaid does not pay the doctors and hospitals enough to assure such care. But with the above reform, the poor would enjoy the same health care as the middle class because they would have the same private insurance as the middle class, paying market rates for care.

The third component of the safety net is a high risk pool in each state for the uninsured who never get coverage and then become too sick with costly illnesses like cancer or heart disease to buy it. That is like calling an insurance company for fire insurance after your house is already on fire. The uninsured in this case would be able to get coverage as a last resort from the high risk pool, paying what they can based on their income. Taxes would subsidize the pool to keep it afloat. Because only 1-2 percent ever become actually uninsurable like this, this is the least expensive option for assuring an essential safety net.

With that everyone would be assured of a means to obtain essential health care. If you have insurance you will be able to keep it, despite President Obama's abusive, deceptive rhetoric to the contrary. If you are too poor to obtain insurance, the government provides the necessary help to buy it. If you nevertheless stay uninsured, and become too sick to buy it, you can obtain essential coverage from the high risk pool.

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ABOUT THE AUTHOR

Peter Ferrara is Senior Fellow at the Carleson Center for Public Policy, Director of Entitlement and Budget Policy for the Heartland Institute, and General Counsel of the American Civil Rights Union. He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under the first President Bush. He is the author of America’s Ticking Bankruptcy Bomb, now available from HarperCollins.