Court brief: Obamacare violates constitutionally protected free exercise of religion

Yesterday the Bioethics Defense Fund filed a brief outlining a potentially significant argument in a court case against Obamacare: that the law violates the free exercise clause of the First Amendment of the U.S. Constitution ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...").The amicus, or "friend of the court" brief, filed on behalf of the Christian Medical Association, the Catholic Medical Association and Medical Students for Life, argues that the U.S. Court of Appeals for the 11th Circuit should affirm the decision of the U.S. District Court for the Northern District of Florida that the individual mandate in the health care law is unconstitutional.

The brief argues that:

1. The way the PPACA law (Obamacare) is structured, individuals are forced to subsidize abortion coverage out of their own pockets (the brief does not address the question of whether it also includes tax subsidies).
2. If the law were a generally applicable law, the government would have more leeway to impose a burden upon religion. However, the law is not a generally applicable law, as evidenced in part by the hundreds of exemptions that the U.S. Dept. of Health and Human Service (HHS) has already granted. None of these exemptions has been based on religious objection to abortion; therefore HHS is discriminating against religion by equating religious objections as less important than non-religious objections.
3. As a non-generally applicable law, the government faces a strict scrutiny test that provides less leeway for government imposition and stronger protections for religion. 
4. The law does not meet the strict scrutiny test, since religious objectors to abortion are forced to subsidize abortion coverage.
5. Therefore, the law violates the First Amendment assurance of the free exercise of religion.

Here's the news release of the Bioethics Defense Fund with more detail:
Amicus Brief Exposes Unconstitutional "Abortion Premium Mandate" in Obamacare
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, the 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.
Read the full text of the BDF Amicus Brief:  http://www.bdfund.org/uploads/file_567.pdf