Repealing Obamacare to Preserve Civil Society

Chuck Donovan / June 29, 2012

The Supreme Court decision yesterday on the Affordable Care Act (Obamacare, or ACA) offered only one hope of answering social issue concerns about the sweeping law: a ruling that the ACA is both unconstitutional in part and non-severable as a whole. That is, if the Supreme Court had dispatched the entire law. Instead, the law’s individual purchasing mandate was preserved, as a tax rather than as a penalty for lawbreaking, and the ACA’s multiple threats to faith, family, and human life went unaddressed.

The good news is that these threats have not been specifically upheld either as a matter of constitutional law or as examples of wise public policy. Broadly speaking, the law weakens every institution of civil society that competes with the national government and its goals in the area of health.

It weakens parents through its many provisions that reduce their health insurance options and that provide their children with “reproductive services” that many of those parents regard as disservices. It weakens churches by directly threatening their social service outreach (whether or not they receive public funding) and denying them the civic expression of their creed. It weakens the insurance industry itself, further transforming it into a public utility with a limited range of offerings. Most importantly, it makes the national government the ultimate arbiter of what is, and is not, health itself.

The social issue concerns about Obamacare fall into three categories:

1. A cornucopia of conscience killers. The first of these is the preventive services mandate, which requires religious institutions (with the exception of an extremely narrow class of church entities) to facilitate the purchase of “services” they regard as morally objectionable. These services include sterilization, abortion-inducing drugs, and contraceptives. Yesterday’s ruling did not affect this “mandate junior,” and two dozen lawsuits against it are still pending in federal court. The mandate could (and should) still be found an unconstitutional infringement on the free exercise rights of religious institutions, including church hospitals, schools, and other charities.
2. A confluence of abortion funding streams. The largest of these is the premium tax credit (PTC), which will be the means to subsidize individuals and families enrolling in state health insurance exchanges even now being set up under Obamacare. The new PTC can finance plans that include elective abortion. The value of the subsidy far outstrips the cost to the insured for elective abortion coverage. The average federal premium subsidy will be $6,460 per person; the presumably “segregated” abortion premium will be as little as $1 per month. The PTC will facilitate the purchase of health care plans that include elective abortion for millions of Americans who did not have such coverage before. The federally run (by the Office of Personnel Management) multi-state plans set up under Section 1334 of the ACA will proceed—each state must offer at least two plans, and only one of them must not fund abortion. The other OPM-managed plans almost certainly will fund elective abortion, and government’s thumb could be on the scale of these plans, making them a preferred option. The elective abortion plans could be made much cheaper, for example, than the “pro-life plan,” perhaps on the very same theory that other “preventive services” reduce plan costs and premiums.
3. A plethora of programs that prefer “comprehensive” services over abstinence alternatives. These include the first-ever federal authorization of school-based clinics and Personal Responsibility Education (PRE) grants. These programs will likely channel even more federal funds to entities that promote abortion and reduce parental involvement. The PRE program provides $75 million per year for grants to help states reduce pregnancies and births to teenagers. Unlike the 1996 welfare reform, however, PRE does not incentivize states to reach these goals without increasing their abortion rates.

On the positive side, the ACA permits the states to exclude private plans that offer elective abortion from their state-run exchanges, and this provision is unaffected by yesterday’s ruling. As of June 1, 17 states have taken advantage of this provision. But note that this is only one-half the number of states that have historically limited abortion funding in their health programs for the poor. ACA has required them to enact new laws to preserve the status quo as public subsidies go up the income scale. Finally, it is by no means clear whether OPM’s multi-state plans, which cannot by law be excluded from the exchanges, will be subject to the states’ exchange rules on abortion.

These and other provisions of Obamacare are not nettlesome features of an otherwise good law. They are part and parcel of a massive and deliberate shift of authority away from localities, businesses, families, and churches—all of civil society—toward an all-knowing health authority based in sprawling federal bureaus. The stakes in the fight to challenge Obamacare legally, and ultimately repeal it, remain extremely high.