Supreme Court Update on Obamacare Abortion Coverage

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Obamacare Compels Individuals to Pay for Surgical Abortion Coverage

 “Bioethics Defense Fund and co-counsel file amicus brief for 7 medical groups exposing

how Obamacare “abortion premium mandate” violates the Free Exercise Clause”

 Original Filing — February 13, 2012. The individual mandate not only forces individuals into private purchases, it also effectively mandates personal payments for surgical abortion coverage, without exemption for individual’s religious or moral objections.  This is the argument presented by seven medical organizations in an amicus brief filed today in the U.S. Supreme Court by lead counsel Bioethics Defense Fund (BDF), along with several leading public-interest legal organizations.

 BDF’s Supreme Court filing presents a novel argument based on the Obamacare Act’s lack of conscience protections.  BDF president and general counsel Nikolas T. Nikas pointed to the brief’s visual imagery:  “Like a Russian nesting doll, the individual mandate has nestled within it a hidden, but equally unconstitutional scheme that effectively imposes an ‘abortion premium mandate’ that violates the free exercise rights of millions of Americans who have religious objections to abortion.”

 Set to go into effect in 2014, the unconstitutional provisions found in Section 1303 of the Obamacare Act compel enrollees in certain health plans to pay a separate abortion premium from their own pocket, without the ability to decline abortion coverage based on religious or moral objection.

 According to BDF senior counsel Dorinda Bordlee, “the recently implemented HHS contraceptive mandate is simply another aspect of Obamacare in action.”  The amicus brief filed today informs the Supreme Court that “[e]ven beyond the recent HHS mandate, the abortion premium mandate provisions found in the original Act are sufficient alone to substantially burden [Americans’] free exercise of religion.”

 Nikas referenced the opportune timing of the Court’s briefing schedule, noting,  “Bioethics Defense Fund and our co-counsel are pleased at this critical point to call the Court’s attention to the direct assault on religious liberty effected by both the abortion premium mandate found in the Act itself, as well as this first of many HHS mandates that the Act authorizes the Secretary of Health to implement without congressional approval.”

 Bioethics Defense Fund counsel developed the novel argument when the brief was first filed in the 11th Circuit Court of Appeals in support of 26 state attorneys general.  The theory was developed with the assistance of co-counsel Mark Rienzi, senior counsel of The Becket Fund for Religious Liberty and associate law professor at the Columbus School of Law at the Catholic University of America.  Additional co-counsel on the Supreme Court brief include Alliance Defense Fund, Americans United for Life, and Life Legal Defense Foundation.

The seven pro-life medical organizations represented as friends-of-the-court include American College of Pediatricians, Christian Medical and Dental Association, American Assoc. of Pro-Life Obstetricians and Gynecologists, Catholic Medical Association, Physicians for Life, National Assoc. of Prolife Nurses, and Medical Students for Life of America.


 Summary of the Argument

 Amici adopt the arguments of respondents, and present another argument that independently

demonstrates the unconstitutionality of the Patient Protection and Affordable Care Act2

 (“the Act”): Its individual mandate, which is not generally applicable, effectively imposes an “abortion premium mandate” that violates the Free Exercise Clause of the First Amendment. U.S. CONST. amend. I, § 1.

  Like a Russian doll, the individual mandate has nestled within it a hidden, but equally unconstitutional, scheme that effectively imposes an “abortion premium mandate” that violates the free exercise rights of millions of Americans who have religious objections to abortion. The individual mandate found in Section 1501 of the Act provides that, beginning in 2014, Americans must either purchase federally approved health insurance or pay a monetary penalty.

  Section I(A) of this brief sets forth and decodes the provisions collectively referred to herein as the “abortion premium mandate.” Found in Section 1303 of the Act, the infringing provisions impose inescapable requirements upon millions of Americans who will be, even unwittingly, enrolled in employer or individual health plans that happen to include elective abortion coverage.

 Such enrollees are compelled by the Act to pay a separate premium from their own pocket to the insurer’s actuarial fund designated solely for the purpose of paying for other people’s elective abortions. As explained below, the Act denies enrollees the ability to decline abortion coverage based on religious or moral objection.

  In conjunction with the forced purchase required by the individual mandate, Section 1303’s abortion premium mandate thus directly encumbers the conscience and free exercise rights of millions of Americans by imposing an unconstitutional burden on them within the private insurance marketplace. Under the Act, members of Amici medical associations and their similarly-situated patients are subject to being unwillingly enrolled by their employer in a plan that requires them to privately pay a separate abortion premium. Alternatively, Amici have their marketplace choices impermissibly limited under the Act by being forced to choose between insufficient plans that respect their conscience versus other plans that happen to require an abortion premium, but that may otherwise better meet their health needs or their choice of doctor network.

 Section I(B) of this brief explains that the Free Exercise Clause is implicated because the Act’s government-imposed burden on Amici’s free exercise rights is far from neutral and generally applicable as required in Employment Div. v. Smith, 494 U.S. 872 (1990). Section 1501 of the Act provides express statutory exceptions to the individual mandate for certain religious objections, but not for religious objections to abortion. The lack of general applicability is further demonstrated by the hundreds of waivers to the individual mandate granted by the Secretary of the Department of Health and Human Services on a case-by-case basis. Because the Act and its individual mandate do not meet Smith’s neutral and general applicability standard, it is subject to strict scrutiny, a standard it cannot meet.

  Section I(C) of this brief outlines our nation’s deeply-rooted history of respecting and protecting the conscience rights of individuals to avoid being forced into the practice or funding of elective abortion. Amici emphasize how these provisions strike at and undermine their most basic principles of morality and religion that call them to respect and protect vulnerable unborn children and to avoid collaborating in the moral evil of directly paying for elective abortion.  It should be noted that the Act’s violation of the Free Exercise Clause addressed in this brief arises from core provisions in the body of the Act, and are distinct from and prior to the recent regulatory decision issued by HHS to mandate virtually all employers to provide insurance coverage for sterilizations, contraceptives and abortion-inducing drugs, without a meaningful religious employer exemption. Even without the most recent HHS developments, the abortion premium mandate provisions found in the original Act are sufficient alone to substantially burden Amici’s free exercise of religion.

  Finally, Section II sets forth the basics of the Founders’ concept of a limited government designed to protect individual liberty, which suffers when Congress oversteps its enumerated powers. This view of federalism is completely disregarded by the Act’s individual mandate and abortion premium mandate, to the detriment of Amici’s first and foundational individual liberty, namely, religious liberty.


Read the brief here.

FULL TEXT of BDF Amicus Brief here:

Brief Summary from pages 5-8 of the BDF Amicus Brief.


July 11, 2013. U.S. Fourth Circuit rules favorably on procedural issues, but unfavorably on the merits.  Read about our Legatus/CMA amicus brief and review a summary of the Fourth Circuit ruling that clears the way for the comprehensive Obamacare challenge to return to the U.S. Supreme Court if they grant the petition to be filed by Liberty Counsel.

 From: Nikolas T. Nikas and Dorinda C. Bordlee, Bioethics Defense Fund

Date:   July 25, 2013

Re:       Obamacare amicus brief: Update on Liberty University v. Geithner

We write with an update on the Obamacare amicus brief that we filed in Liberty University v. Geithner on behalf of you and 280 other members of Legatus exposing exactly how the individual mandate and its abortion provisions act as an unconstitutional tax on pro-life conscience.”  The amicus brief also represented the Catholic Medical Association.

On July 11, 2013, a three-judge panel of the U.S. Fourth Circuit,  issued an opinion in the challenge filed by Liberty Counsel against the Affordable Care Act (Obamacare).

In short:

1)  The court agreed with Liberty Counsel on the procedural questions at issue:  Liberty University and the individual plaintiffs have legal standing to bring the case, and the Anti-Injunction Act (AIA) also does not bar the case from being heard.  These were important procedural rulings that allow the case to continue.

2) On the merits, the court ruled unfavorably, concluding that Congress had the authority under the Commerce Clause to pass the employer mandate.  Regarding the issue that we briefed on your behalf, the court ruled that because Liberty’s case was filed before the HHS contraceptive/abortifacient mandate was enacted, the court need not consider the full implication of the religious liberty issues.

The bottom line is that the favorable procedural rulings clear the way for the merits of the Liberty case to continue to the U.S. Supreme Court.

What’s next?

We have consulted with the main party’s counsel, who advise that they will be filing a petition asking the United States Supreme Court to hear this challenge to the entire employer mandate and the individual mandate.

As explained in Liberty’s press release, “the petition will also include the claim that the forced funding of abortion violates the free exercise of religion and the Religious Freedom Restoration Act with respect to individuals.”Your Legatus amicus brief will be key in shaping that petition argumentWe will also file an amicus brief in the Supreme Court if the petition is granted.

Together, we are shedding light in the chambers of judicial power. We will keep you posted as this comprehensive Obamacare challenge proceeds.

Article and Brief Summary from

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