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The More People Know Obamacare, The Less They Like It (Forbes.com) May 30, 2012

Posted by daviddavenport in Newspaper Columns/Essays.

For constitutional lawyers, the federal takeover of healthcare is the gift that keeps on giving.  Even before the U.S. Supreme Court has issued its opinion on the constitutionality of the Patient Protection and Affordable Care Act, 43 Catholic charities and schools have brought a federal lawsuit challenging a separate federal mandate to provide contraceptives.  And the latest is a canonical case brought by “The Exorcist” author William Peter Blatty over Georgetown University’s hosting of a speech by Kathleen Sebelius, Secretary of Health and Human Services, who is enforcing the contraceptive requirement. 

When the federal government attempts to take over something like education or health care that has constitutionally and traditionally belonged to the states, its one-size-fits-all pair of regulatory shoes starts pinching a lot of feet.  Deciding questions such as contraceptive requirements in health insurance at the state level not only brings the debate literally closer to home, but leaves room for more liberal or more conservative states to address these things according to their own political and cultural values.  But now that healthcare is becoming a federal matter, every aspect of it necessarily becomes “a federal case.”

So now, in addition to the imminent Supreme Court decision on the constitutionality of the individual mandate and the federal mandate that states change their Medicare policies, we also have church-state healthcare problems as well.  President Obama and Secretary Sebelius tried to finesse this question by saying churches would not have to provide contraception in their insurance, but they would not extend that policy to church-related organizations such as charities and universities.  Now Notre Dame and others have sued in federal court, charging that such a federal mandate violates their First Amendment freedom of religion, requiring them to provide coverage that goes against their own religious policies. 

Mr. Blatty’s case says this is bigger than federal, since his suit goes to the Vatican, as well as the Archdiocese of Washington, D.C., asking that Georgetown no longer be considered Catholic.  Blatty’s suit will not be popular on campuses, of course, since academic freedom claims the need for a diversity of speakers, but it asks the essential question:   What does it mean to be a Catholic university? 

Tallying up the scoreboard of where the federal takeover of healthcare has brought us so far:

–The general public doesn’t like it.  Its polling numbers have dropped steadily, now 52%-41% against.  The more people know, the less they like it.

–Over half the states have brought federal lawsuits opposing it on constitutional grounds.

–The Catholic Church, and other religious organizations, doesn’t like Washington telling them they have to provide controversial coverage that violates church doctrine.

–And economists now tell us that federal healthcare will cost more, not less, than what we have now.  A recent study by Charles Blahous, trustee of the Social Security and Medicare funds, indicates that, rather than saving money, the new health reform law will add $340 billion to the deficit.

At this point, there are only two “exorcists” capable of expelling these demons.  First, and more likely, the U.S. Supreme Court could decide that the new healthcare law goes too far and is unconstitutional.  This is not nearly as unlikely as some once thought and, given the mounting problems with federalizing health care, it could be a welcome relief.  Although President Obama and his colleagues have tried to build a rhetorical barrier against such a decision, arguing that it would fly in the face of precedent, in fact the way these things work is that federal power keeps growing until it simply grows too far, it reaches a tipping point, and a more conservative opinion is issued.  The justices asked precisely these kinds of questions in oral argument:  if this is commerce, what limits would be left, and, if this isn’t coercing states to follow federal policy, what would be? 

The other potential “exorcist” is Congress itself stepping up to repeal the health care law.  The House actually did vote to repeal it last year, though the Senate voted against on a straight party vote.  Barring significant gains in Republican Senate seats in the fall elections, this would be a tougher route to go. 

In an election year, it is easy to find political motives for most anything.  But when you have economists estimating rising costs, public opinion polls heading steadily south, federal lawsuits springing from both the commerce and spending power clauses, and now serious questions about religious freedom, it seems like time to at least pause and rethink, if not exorcise some of these federal healthcare demons.

To view the article on Forbes.com please click on the link:  http://www.forbes.com/sites/daviddavenport/2012/05/30/the-more-people-know-obamacare-the-less-they-like-it/

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