No time to catch your breath, folks. Now that we’ve seen the Supreme Court’s ruling in Obamacare I, it’s time to anticipate Obamacare II. Obamacare II will likely be one of twenty-three free exercise of religion cases against the HHS Mandate for employers to provide health insurance that includes coverage of contraceptives. The analysis of that scenario under the Religious Freedom Restoration Act is detailed in National Review; whether or not that author’s conclusions are correct, you can at least walk through the steps of the analysis.
As pointed out by the Washington Post Obamacare I may have a couple hints about how Obamacare II will be decided. The first – if it was a hint at all – was a subtle comment in Justice Roberts’ majority opinion:
Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.
Of course, compliance with free exercise of religion would be one such requirement. Justice Ginsburg’s dissent was somewhat more direct:
A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.
Lest you get too excited about that last quote, note that there has to be not only abridgement of a free exercise right, but also impermissible abridgement. Still, keep in mind that this is the Court whose members were unanimous in upholding the free exercise claim in Hosanna-Tabor. Yes, Justice Ginsburg was on board in that one, so it’s altogether possible that she and Justice Scalia will be on the same side notwithstanding their stark divergence in Obamacare I.