A Lawyer Evaluates Supreme Court Decision

American Christians and the Health Care Decision

David Opderbeck is Professor of Law and Director of the Gibbons Institute of Law, Science & Technology at Seton Hall University Law School.  He is also a doctoral candidate in philosophical theology at the University of Nottingham.

Thursday last week the U.S. Supreme Court issued its decision in National Federation of Independent Business v. Sebelius – the health care law case.  Not surprisingly, the talk shows, the newspapers, the blogosphere, Twitter, Facebook, and every other imaginable outlet are lit up with comments and arguments.  What should Christians think about this case?

I will offer some thoughts about how I think Christians should think about it. But first, and perhaps most importantly, I’d like to suggest that there is no single position that can be called the Christian view on this particular case.  It’s a complex issue in terms of economics, social policy, history, and the law.  Let’s try to give each other the freedom to express nuanced opinions on these difficult questions.

There are at least two common themes running through much of the Christian commentary on the decision.  On the right, the view is that the Court’s decision, as well as the law itself, represents a threat to freedom.  For example, here is something posted on the Trinity Forum’s Facebook page, from TTF Trustee Edwin Meese:

The Court was correct to find that Congress does not have the authority to compel purchases under the Commerce Clause.  But it erred in contorting the statute to declare the penalty a tax.  And the fact that the Court decided to allow this abuse under the government’s taxing authority, not the Commerce Clause, doesn’t change the fact that individual freedom has been dealt a serious blow.

On the left, the decision, and the law itself, are viewed as an important victory for justice.  Here is Jim Wallis of Sojourners:   “This is an important victory for millions of uninsured people in our country and ultimately a triumph of the common good.”  Nevertheless, Wallis qualifies his praise:

While I believe the decision is reason to celebrate, it doesn’t mean that this legislation is somehow the flawless will of God; it is an important step in expanding health care coverage and reducing long term costs, but it still is not perfect and more work is yet to be done.

The U.S. Conference of Catholic Bishops opposed aspects of the law but did not ever argue for its repeal.  Their concerns about the law were not based on the notion of universal health care itself, which is something Catholic Social Teaching supports (or at least can be read to support).  Rather, the Bishops are concerned that the law that seems to support abortion, compromises rights of conscientious objectors, and does not provide adequately for immigrants.  In their statement on the Court’s decision, the Bishops conclude:

Following enactment of ACA, the U.S. Conference of Catholic Bishops (USCCB) has not joined in efforts to repeal the law in its entirety, and we do not do so today.  The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct the fundamental flaws described above.  We therefore continue to urge Congress to pass, and the Administration to sign, legislation to fix those flaws.

Before I offer my thoughts on these varying representative perspectives, let me step back and note once again that each of them represents good faith efforts to think Christianly about the Court’s decision.  The fact that they finally offer different visions of the end result should give us pause before we argue that there is only one faithful way to think about it.

That said, from my own perspective, the Trinity Forum / Edwin Meese comment is the most theologically problematic of the three I’ve referenced.  Even more problematic, I think, are the more extreme libertarian critiques of the law heard in many outlets.  Meese’s comment is at least measured in tone, which is not the case with much of the libertarian rhetoric that feeds into what many Christians have said and are saying about “Obamacare.”  How quickly does the dreaded “s” word – “socialism” – arise in many of these comments?

I wonder when “individual freedom” became the sine qua non for Christian social ethics about health care? It seems to me that Christians of all people should be willing to sacrifice some of their “individual freedom” in order to ensure that everyone, particularly “the least of these,” has access to health care.  In scriptural and Christian theological terms, true “freedom” is not libertarian license, but rather is the full participation of a person in God’s self-giving love.  And true “freedom” is never about isolated individuals – as God is a Triune community, so we as human beings can only be truly “free” in community.

Of course, even if we agree that Christians should be willing to give up some “individual freedom” to facilitate health care for others – or, perhaps better, that Christian freedom means moving beyond selfishness —  the question remains whether such care should be provided through government, through private associations, through Churches, through families, and so on.  There is a long and tangled tradition of Christian political theology on all of these questions – and, at least in my opinion, there is no simple right answer.  It isn’t enough here merely to refer to “sphere sovereignty” or “subsidiarity,” just as it isn’t enough merely to refer to the immanent “peaceable Kingdom.”  I do think some ways of working through this are much better than others, but these are the subjects of long and carefully worked out philosophies that can’t be reduced to sound bites.  (For a flavor of what I think is a wonderful example of contemporary Christian political theology regarding public goods and markets in areas such as health care, see Pope Benedict’s Encyclical Caritas in Veritate).

From my perspective there is less to criticize in Wallis’ comment on the decision.  Nevertheless, I would much more significantly qualify my enthusiasm for the result because of Justice Roberts’ reasoning on the taxing power.  In fact, ultimately I think it’s a poorly reasoned judicial opinion that opens a can of worms concerning what the government can call a “tax.” It seems to me troublesome development that the Constitution’s taxing power can extend to a choice not to buy a product – a choice not to act.  I don’t want to pay taxes, for example, for choosing not to buy a car or a bicycle or broccoli.  This really does seem to expand the government’s economic power in ways I find troubling.

While “individual freedom,” in libertarian terms, is not the central concern (as I see it) of Christian social ethics, nevertheless the integrity of the person very much is a central concern.  And this does mean that persons, not States, finally are the basic subject of politics, and that freedoms of the person and of private associations of persons are of basic importance.  An essential function of any just political structure therefore must be to hold the State’s power in check through the rule of law.  Whether the majority or the liberal-wing dissenters in the Sebelius case were right about the commerce clause issue – itself a legally and historically complex question — I believe the commerce clause should have been the basis for the decision rather than the taxing power. In my view, the payments required for uninsured persons under the individual mandate clearly are a “penalty,” not a “tax,” and therefore they should stand or fall as an exercise of federal governmental power under the commerce clause.

Given my reference to Pope Benedict’s Caritas in Veritate, it’s perhaps not surprising that I personally find the USCCB statement about the Court’s ruling the most appropriate of the three I’ve referenced.  In my view, Christians should desire that all persons have access to decent health care, and markets alone cannot meet this goal either from a moral or a pragmatic perspective.  A Christian social ethic therefore should recognize that it is a necessary and appropriate function of government to facilitate universal access to healthcare. However, where “healthcare” includes things like elective abortions, which raise serious moral concerns for many persons and religious associations, appropriate exemptions should be included.  And I fully agree with the U.S. Bishops that, particularly from a Christian perspective of welcome, immigration reform is essential, not least as in relation to education and healthcare.

So, I don’t have a final answer concerning how Christians should thing about the Sebelius case and the health care law.  I hope, however, that we can try to think about it in more careful and theologically nuanced terms than usually surface in popular debates.