Today, the Supreme Court held that Obamacare could be imposed on the nation because its centerpiece, the individual mandate, is permissible as a "tax" on the people. Although this is bad news for those of us who hoped that the Supreme Court would strike down the law and restrain federal power, this is not the end of the fight. As Obamacare is implemented, its countless mandates will infringe on freedom in a multitude of new ways.
The first of Obamacare's hammers has already fallen, targeting religious freedom. And attention must now turn to the dozens of cases around the country aimed at stopping what is known as the Health and Human Services, or HHS, mandate -- the requirement that qualifying insurers and self-ensuring employers pay for sterilizations, abortifacient drugs and contraception, or else pay a fine.
In his famed "Memorial and Remonstrance" (1785), James Madison opposed a tax to support religious teachers because he saw it as a violation of conscience for those who objected. He warned that the "same authority which can force a citizen to contribute three pence only of his property for the support of any one" violation of his conscience may do so "in all cases whatsoever." Revealed now as a massive tax hike, Obamacare mandates not just "three pence," but thousands of dollars from citizens and employers nationwide to support abortion-inducing drugs, sterilization and contraceptives in violation of individuals' consciences.
Across the country, the Alliance Defense Fund and others are fighting in court to stop the HHS mandate from being implemented. Those cases are only in their opening stages, and the Supreme Court's ruling did not undermine them, because the court was not considering a religious freedom challenge. We are confident the court will hold that the HHS mandate violates the First Amendment and the Religious Freedom Restoration Act.
Thursday's ruling has given rise to a great deal of confusion regarding the HHS mandate, and the lawsuits brought against it heretofore. Vocal supporters of Obamacare have already proclaimed that the lawsuits against the HHS mandate are futile. In fact, within hours after the Supreme Court's decision was released, people on radio programs, television news programs and various Internet outlets expressed their view that the HHS mandate is now irreversible. This is nonsense.
Today, the court said that it is not its role to save the people from their political mistakes. But the HHS mandate is not a mere "political" mistake. It violates the Constitution, which the court does enforce, and it violates the religious freedom statute signed into law by President Clinton, which trumps Obamacare.
Understood in this light, the various suits against the mandate will go forward -- indeed, they must go forward.
The Obamacare decision reminds us of earlier words from the Supreme Court, that "the power to tax is the power to destroy." But we are also reminded that the destructive power of such taxation is aimed not just at wealth or physical property, but at conscience and religious liberty as well.
The HHS mandate stands in direct contrast to that which Madison described as "a fundamental and undeniable truth" that conscience cannot be so coerced. This is not over. It is just beginning.
Casey Mattox serves as legal counsel with the Alliance Defense Fund at its Washington, D.C., Regional Service Center.