Note: This item originally appeared at the website of The American Thinker.
Theย Hobby Lobbyย case is being hailed by freedom advocates as a great victory. ย On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom.
One of these land mines is how the justices treated the question of whether mandated abortifacient insurance promotes a โcompelling government interest.โ
In its principal opinion, the Court assumed for purposes of argument that the U.S. Department of Health and Human Services (HHS) contraceptive mandate serves a compelling government interest. ย However, fiveย members of the Court โ a majority โ went farther: Justice Kennedy stated in concurring opinion that the decisionโs โpremiseโ was that the federal government had a โcompelling interest in the health of female employees.โ ย The four dissenters affirmatively claimed that the mandate furthered โcompelling interests in public health and womenโs well being.โ
The mandate in question was issued under the Affordable Care Act (ObamaCare). ย In 2011, a federal district judge found that another Obamacare mandate also served a โcompelling interestโ (Mead v. Holder).
It is a very serious matter when the Supreme Court classifies a law or other government action as serving a โcompelling interest.โ ย In the Courtโs jurisprudence, most laws promote only โlegitimateโ interests, and a few promote legitimate interests that are โimportantโ as well. ย On rare occasions, a legitimate interest is held also to be โcompelling.โ ย Ifย a law is deemed โnecessaryโ to advance the compelling interest, the law may actually overrule portions of the Bill of Rights. ย It also may overrule basic liberties listed elsewhere in the Constitution or in the Religious Freedom Restoration Act.
Although the ObamaCare mandate inย Hobby Lobbyย ultimately did not override the Religious Freedom Restoration Act, the ObamaCare mandate inย Mead v. Holderย did.
In our federal system, the states enjoy broad powers to regulate to promote health, safety, morals, and general welfare. ย In other words, states can employ the law for many legitimate purposes. ย The Court has found that some of these legitimate purposes are compelling. ย For example, a state vaccination law designed to prevent epidemics may overrule oneโs right to refuse vaccination. ย Similarly, the Court holds that a stateโs interest in stamping out racial discrimination is not only legitimate, but compelling.
Still, the number of compelling interests is fairly small. ย Even state health laws usually are not compelling enough to overrule fundamental rights.
Unlike the states, the federal government is limited to the enumerated powers granted in the Constitution. ย The Supreme Court hasย ruled that some of these enumerated powers also serve compelling interests, such as national defense and Congressโs 14thAmendment authority to remedy discrimination by state governments. ย But federal peacetime economic regulations, like state laws, are almost never โcompelling.โ
That brings us to ObamaCare. ย The Affordable Care Act has all sorts of social and health care implications, but (aside from its taxes and spending provisions) it is justified constitutionallyย as a set of commercial and economic regulations. ย For example, when arguing that the Supreme Court should uphold ObamaCare, the president characterized it as โa[n] economic issue โฆ that I think most people would clearly consider commerce.โ ย In herย Hobby Lobbyย dissent, Justice Ginsburg likewise cited economic factors to justify the contraceptive mandate.
Thus, despite ObamaCareโs health implications, itsย constitutionalย purpose is economics or, more precisely, commerce. ย ObamaCareโs regulations on insurance companies and employers, such as the contraceptive mandate, specifically are said to rest on the Constitutionโs Commerce Clause. ย This is because the Constitution grants the federal government no enumerated power over health care. ย The great Chief Justice John Marshall made this very point in his famous opinion inย Gibbons v. Odgen, when he wrote that โhealth laws of every descriptionโ were reserved exclusively to the states.
But if, constitutionally, ObamaCare is but a collection of economic regulations โ and if peacetime economic interests are virtually never โcompellingโ โ then why is ObamaCare different? ย Is it just that the ObamaCare is popular among the class of people who serve as federal judges?
The answer is that in this sense, ObamaCare is not different. ย It is constitutionally similar to many hundreds of other economic regulations enacted by Congress and the states. ย It is just more comprehensive and much more intrusive.
Now consider the risk to freedom from allowing such a law to be lifted to โcompellingโ status. ย That risk extends far beyond the threat to religious liberty. ย If, for example, providing โfreeโ contraceptives is a compelling interest, then Congress might pass a law forcing companies to produce them. ย Or if forcing people to buy insurance serves a compelling interest, then federal officials might well demand laws to jail people who try to dissuade others from signing up.
Remember the Supreme Courtโs formula: a law necessary to promote a compelling interest can override the Bill of Rights. ย ObamaCare is barely constitutional โ if it is constitutional at all. ย We must not allow the courts to sanctify it.
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