May 11, 2011. Bioethics Defense Fund (BDF) has filed an amicus brief on behalf of three pro-life medical associations presenting a unique additional reason why the so-called Obamacare Act is unconstitutional: its individual mandate also imposes and “abortion premium mandate” that violates the Free Exercise Clause of the First Amendment.
The amicus brief was filed in the Eleventh Circuit Court of Appeals in support of the twenty-six State Attorneys General, on behalf of the Catholic Medical Association, Christian Medical and Dental Association, and Medical Students for Life.
The brief is the first to oppose the individual mandate based on a detailed outline of the abortion provisions found in Section 1303 of the Patient Protection and Affordable Care Act. Added on the Senate side as part of the “Nelson Compromise,” the provisions mandate that certain issuers “shall” obtain, without exception, a separate premium from each enrollee’s own pocket to be used solely for the payment of other people’s elective abortions.
Even though the language was intended to prohibit an individual’s use of government subsidies for abortion coverage, “Congress cannot meet that goal by unconstitutionally forcing Americans to personally foot the bill for abortion, in violation of their sincerely held religious beliefs,” said BDF president and general counsel Nikolas T. Nikas.
According to co-counsel Mark Rienzi of Columbus School of Law, “the Supreme Court has allowed government imposed burdens on free exercise only if the law is ‘neutral and generally applicable.’” But he says that the Act does not even come close to meeting that standard.
According to BDF senior counsel Dorinda C. Bordlee, “the individual mandate provides for limited religious exemptions – but only for those who religiously oppose insurance benefits, not abortion; and, the Secretary herself has issued hundreds of waivers to the individual mandate on a on a case by case basis. This shows that the law is not generally applicable and that Congress really has no compelling interest in forcing all Americans to purchase health insurance, especially when it forces them to personally pay a designated abortion premium.”
Bioethics Defense Fund senior counsel Dorinda C. Bordlee filed the brief as counsel of record, along with BDF general counsel Nikolas T. Nikas. Co-counsel include Mark Rienzi, Assistant Professor at the Columbus School of Law, Catholic University of America; Timothy J. Casey; and Christopher A. Ferrara of the American Catholic Lawyers Association.