Yesterday, the U.S. House of Representatives passed H.R. 2, a measure to repeal Obama's health care law. Entitled, "Repealing the Job-Killing Health Care Law Act," the measure was passed by a 245-189 vote, with unanimous GOP approval. Today, the House will consider H.R. 2's companion bill, H.R. 9, which will instruct four House committees to draft new legislation to replace the health care law. As part of the GOP's campaign promise to "repeal and replace" ObamaCare, H.R. 9 charges the appropriate House committees with drafting a new health care law that will prohibit denial of coverage for preexisting conditions, reduce medical malpractice suits, and "prohibit taxpayer funding of abortions and provide conscience protections for health care providers."
In December, a federal court in Virginia, in the case Cucinneli vs. Sebelius, struck an essential provision of the health care law as an unconstitutional overreaching of congressional power. At least twenty-six other states have joined a similar lawsuit in Florida challenging the constitutionality of the health care law.
This essay shall summarize the recent developments in the courts and in Congress regarding Obama's health care law, as well as offer a forecast of what can be expected for the future of ObamaCare.
In the Virginia case, the federal Court's decision in Cucinelli v Sebelius, the federal government argued that a requirement for all U.S. citizens to purchase health insurance or else suffer a penalty fine is constitutional under the Commerce Clause (Art. I, Section 8, Cl. 3 of the U.S. Constitution), which gives Congress the authority to regulate interstate commercial activity.
Earlier, in July, 2010, a federal district court in Michigan accepted the government's argument, and held that the penalty fine is a reasonable means to achieve universal, affordable health care. However, the Michigan court failed to see that the issue in question is much more fundamental in nature than the practical considerations of achieving health care reform.
The true issue in this challenge to ObamaCare is whether or not Congress has the constitutional authority to require citizens to purchase a specific commercial product, be it health insurance, cars, clothing or any other kind of consumer goods. The individual mandate extends federal power over citizens' decision-making process on whether to enter into the stream of commerce by punishing commercial inactivity (i.e., deciding not to purchase health insurance). Although the Commerce Clause gives Congress the power to regulate commercial activity, it does not give it the authority to regulate commercial inactivity and the decision-making process of whether or not to enter into that commercial activity. In other words, the practical necessity of the individual mandate for providing affordable health insurance is irrelevant to the more fundamental question of adherence to the principle of federalism.
Unlike the Michigan court, the Virginia court recognized this fundamental issue, stating: "Despite the laudable intentions of Congress in enacting a comprehensive and transformative healthcare regime, the legislative process must still operate within constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers."
The Virginia court stated further that: "Neither the Supreme Court nor any federal circuit court of appeals has extended the Commerce Clause power to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market." If Congress is able to regulate both commercial activity and inactivity, Congress will have "unbridled" power to regulate almost anything.
This position is compatible with the Catholic argument against federally-controlled health care. Although the Church has a long tradition in support of universal health care, it also has a tradition of espousing the principle of subsidiarity when it comes to policy-making: when possible, decisions and laws should be made on the smallest, most local level.
Virginia is not the only state making the "federalism" argument. In fact, over half of the states have joined together as plaintiffs in State of Florida, et al., v. United States Department of Health and Human Services, et al., a Florida lawsuit challenging the health care law's constitutionality on federalism and Commerce Clause grounds. Just this week, six states (Iowa, Kansas, Ohio, Wyoming, Wisconsin, and Maine) filed court papers to join the suit, bringing the total number of states to a historical twenty-six.
The Florida case is anticipated to be decided in the next few weeks. With a record number of states joined in the Florida lawsuit, it is expected that the case will eventually reach the U.S. Supreme Court. The Supreme Court will likely hear the appeals from both the Florida and Virginia case together.
Some legal scholars have speculated that, as it did with the New Deal legislation during the Roosevelt Administration of the 1930's, the Supreme Court could strike portions of the health care law as unconstitutional and give Congress another shot at re-drafting the legislation. Others have predicted the outcome according to party lines, with justices appointed by Republican presidents voting against the constitutionality of the law and those appointed by Democratic presidents voting in support. However, as this case presents an historically controversial and complex situation without significant Supreme Court precedent directly addressing this specific issue, no concrete predication of a Supreme Court case outcome can be made at this point.
Today, the House of Representatives is debating the issue of abortion in health care, as they prepare to vote on H.R. 9. The resolution will likely pass in the House with a similar vote count as H.R. 2. The focus will then shift to the Senate. As Senate majority leader Harry Reid has already declared that he will block any debate, consideration or vote on these bills, it is likely that these initiatives will die in the Senate. Even so, the passages of H.R. 2 and H.R.9 in the House are symbolic of the new GOP House majority's commitment to repeal and replace ObamaCare, and to prohibit the use of federal funds for abortion. The passage of the bills within the first few weeks of GOP control in the House have framed the debate which will dominate this legislative session.
As a full repeal of ObamaCare is not likely to occur in one fell swoop, legislators are already planning to repeal and replace the health care law piece-by-piece. For example, Congressman Mike Pence has introduced the Title X Abortion Provider Prohibition Act, which will prohibit Title X "family planning" funds from being disbursed to organizations that perform abortions. The bill already has over 122 co-sponsors. The bill will allow increased funding for organizations that provide family planning and preventative services such as breast cancer screenings and HIV protection education.
In conclusion, advances have been made in both the courts and in Congress to overturn Obama's health care reform. Although legislative resolutions to completely repeal and replace ObamaCare will likely fail in the Senate, there may be success in smaller pieces of legislation that tackle health care issues one at a time, such as the Title X Abortion Provider Prohibition Act. In the courts, a Supreme Court case on the constitutionality of ObamaCare is expected. As the health care debate culminates, the outcomes and interplay between the court and legislative battles will greatly direct the focus of the U.S. pro-life movement.