During the oral arguments at the Supreme Court this week, Justice Elena Kagan said something that caught my ear:
But, of course, the theory behind, not just the government's case, but the theory behind this law is that people are in this market right now, and they are in this market because people do get sick, and because when people get sick, we provide them with care without making them pay. And it that would be different, you know, if you were up here saying, I represent a class of Christian Scientists. Then you might be able to say, look, you know, why are they bothering me? But absent that, you're in this market. You're an economic actor.
As a Christian Scientist, I've gotten quite a few questions about what Justice Kagan meant on Tuesday. Many people haven't heard of Christian Science, much less about how the health care law affects us. To put it frankly, I was shocked by Justice Kagan's remarks.
And not because she was wrong about Christian Science. She wasn't. In her comments, Justice Kagan illustrated a fact about the practice of health care in America that exposes why the individual mandate is unconstitutional -- and why it tramples the First Amendment rights that all of us hold dear.
The premise of the law is rooted in the federal government's power to regulate interstate commerce. On Tuesday, the government argued that virtually all Americans are in the health care insurance market (commerce) because everyone will get sick and require health care at some point. To be universally mandated and regulated, all Americans would have to be active participants in this commerce.
Except they're not. And as Justice Kagan rightfully implied, the decision not to buy medical insurance isn't just "non-activity" -- for Christian Scientists and others, it's an affirmative choice to seek alternative types of care.
As Justice Kagan stated, mandating Christian Scientists to buy medical insurance not only forcibly drags many of us into commerce, it violates our religious conscience.
Christian Scientists, like Christ's disciples, turn to Christian healing for virtually all of their deepest needs (including health), adhering to Jesus's command to "heal the sick." The church doesn't force abstinence from medicine, but legally commanding that all citizens of this country must use medicine is antithetical to Christian Scientists' core beliefs.
This law medicalizes citizenship.
To pull an analogy from recent news, imagine if Catholics were mandated to buy contraception for personal use to encourage safe sex. Virtually everyone has sex, but that doesn't give the government the power to force individuals into commerce. Sure, some Catholics use contraceptives, but this hypothetical law would most certainly violate the conscience of the church and its members.
Here's another one: Imagine if the government mandated that all Jews had to buy pork. Similar to health care, virtually everyone is involved with food commerce, but no one would support the government forcing Jews to buy a product with which they religiously disagree.
These analogies and the real life situation facing Christian Scientists illustrates the health care law's fundamental threat to liberty -- especially religious liberty. As Justice Kennedy stated on Tuesday, this law "changes the relationship of the Federal Government to the individual in a very fundamental way."
Americans are not subjects. We are not a people of the government. We have a Constitution with enumerated powers for a reason.
That reason is to protect individual freedom and free choice. Let's remember, if the government has to mandate an action, it means people are choosing not to do that action. A one-size-fits-all mandate discounts individual choice and promotes an all-powerful, paternalistic state-one that believes Washington knows best.
In the case of health care, the argument against free choice is well-stated. Our welfare system attracts freeloaders who choose not to insure because health insurance prices are too high and they know the government will have their back. But, to quote President Obama in his 2008 campaign, "If a mandate is the solution, we could try that to solve homelessness by mandating everybody to buy a house." The problem is affordability and mandates actually drive up the cost of insurance.
America can find a health care solution that drives down costs and doesn't fundamentally infringe on the Constitutional rights of all Americans. The freeloader problem doesn't justify an unconstitutional solution. It's un-American to trample the religious and economic liberties of a free people-even if it's in a noble pursuit.
The health care case isn't over, and just because this argument was only brought up by Justice Kagan in passing doesn't mean it can't make its way into the majority opinion. Paul Clement did an excellent job arguing for the 26 states challenging the law, but ultimately his argument can only hope to garner the courts conservative votes plus Justice Kennedy.
Justice Kagan's comments lead us to believe that this addition is the strongest, most broad-based argument against the mandate, and we need it as precedent to protect the rights of all Americans.