Basic Health Care- Going, Going, Gone

During the campaign, the Affordable Care Act, or Obamacare, was viciously attacked by Donald Trump.  He can’t repeal it without going through Congress.   There is no replacement program.

So what has he done with his January 20, 2017 Executive Order?  Some  will tell you he has reduced the economic burdens of the program on Americans.  This nice sounding language is in the executive order.

The ACA requires a lot of administration, because insurance plans must conform to certain coverage standards.  What the Executive Order does, is to allow all agencies of government the ability to make Obamacare worse, by ignoring administrative responsibilities.

Today’s headines in the NY Daily News, called the Executive Order will gut or dismantle Obamacare.  It is designed to add a new layer of confusion to the administration of the program- just make it look worse than it is.

Daily News Story 

Trumpcare doesn’t exist. What insurance companies need in order to grow, is to insure fewer people with health problems.   This is why they want the ability  to deny coverage or limit benefits to many people.  The ACA was our country’s  first real attempt to make these denials impossible.  But, there had to be penalties for Americans who refused to either obtain private insurance or through the ACA exchanges because the system would not work if only people with health problems got insurance.

Stay tuned,


Zubik v. Burswell- Another Supreme Court Challenge to Obamacare

” Clowns to left of me, jokers to the right, Here I am, stuck in the middle with you.”  Lyrics-  Steve  Healy  band.

The “you” in Steve Healy song, are the plain facts about the latest case to come before the Supreme Court. Most people are not interested in facts.  The clowns and jokers are far more entertaining for their 90 seconds of fame.   I dedicate this blog to my favorite clown/joker Graham Ledger, truly outstanding for his total certainty on topics of which he has no real knowledge.  One day it will be Iran, the next Obamacare or the deficit.  He is a truly non-stop Obama basher.  When lesser minds prevail, God save us all!

Oral arguments were held on   March 24,  in Zubrik v Burswell in the Obamacare case.


We think of religious freedom as guaranteed under the First Amendment.  In fact, our rights are further extended and defined by many other laws and rulings by the courts.  Religious freedoms, as with every right in the Bill of Rights, are limited.   You may not refuse to pay your taxes, because that is a violation of your religious principles.   If your religious principles says that you can not hire blacks or Muslims in your business, the laws related to race and religious discrimination will likely supersede these religious beliefs.

I will examine religious freedoms in a separate blog.  It isn’t as Ted Cruz or Graham Ledger portray it.  They extract from many cases,  a  select few concerning Catholics and ignore many other cases from lesser religions.

But the Zubrik case involves  the extend of religious accommodations based on  the Religious Freedom Restoration Act (RFRA which the justices refer to  as “ree fra).  It is not a constitutional case. This is the mistake made by conservative commentators on Fox News and One American News.

It is about whether  accommodations made in the ACA (aka Obamacare) for those seeking exceptions to the contraceptive program are adequate.  Or do these accommodations in fact become  burdensome as the plaintiffs claim.    In attempting to enforce the RFRA, could the court go as far as say anybody could opt out of any part of Obamacare, because in their minds, it conflicts with their religious beliefs? In doing so, what is slowly eroded is this notion of a standard set of benefits,  independent of the provider of the insurance.  Of course, this is exactly what those opposed to Obamacare want.

A lot of Supreme Court observers expect the court will divide 4-4 in which case, the lower court cases stand.  I believe it will be a 5-3 decision, with Justice Anthony Kennedy siding with the liberal group. It is possible that the decision will be 6-2, with both Roberts and Kennedy joining the liberal side. There is a final option to hold over the case,  in hopes that the Congress will approve a new justice.

We shall find out in June, 2016.

In the next few blogs, I hope to go a bit deeper into religious freedom.  It is crazier than you think!

Stay tuned,









Religious freedom burdens

This stuff gets pretty long, but hang in there.  “Things should be made as simple as possible, but not simpler,”    is often attributed to Einstein,  although nobody can really agree who said it.   “Things can be as simple as you want, as long as you say it is just your opinion”  is what I believe in.   I am not giving the whole story, only the bits and pieces I think are important.  So be it.

A case involving Obamacare and religious freedoms has now been accepted to be heard in the Supreme Court.  A similar case has already been decided.  You can call these cases  ACA I and ACA II, where ACA 1  is the Burwell v. Hobby Lobby case   ACA II is the Little Sisters of the Poor v.  Burwell case.   These challenges are based on Religious Freedom Restoration Act (RFRA) cases which can be pronounced  reef-rah if you want to impress folks.

It started with the First amendment, enacted in 1791. The first 16 words of the amendment are, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Laws are passed by Congress rarely directly  prohibit normal religious exercise.  The Fourteenth Amendment made certain that no State or local government could pass laws prohibiting the free exercise of religion.  If a local government passes a law specifically against a practice of a religion, then it can be held unconstitutional, as occurred in the “Santeria” case

Church of the Lukumi Babalu Aye v. City of Hialeah, 1993 (pre RFRA)

But this case is the exception.  Local communities pass to prohibit other practices or activities, which causes a burden or conflict with  religious groups beliefs or practices.  For example, let us say that your religion requires smoking pot, and the government passes a law against smoking  marijuana, have they violated your right to religion?  Hypothetically, let’s say there’s a noise limitation rule in a community, and early Sunday morning, a Church wants to blast gospel music from their lound speakers.   Does this rule impose a burden on free exercise of religion?

Suppose,  you belong to an Indian tribe, which ingests peyote buttons in religious rituals, and then got fired from your job, when tested for drugs- has the government made your practice of religion more difficult?  This is  “Employment Div. v. Smith” Case. The complaint was denial of unemployment benefits to two individuals (Alfred Smith for one)  belonging to a Native American Church because they tested positive for mescaline.  The Court agreed with the denial of benefits in 1990:

Employment Div. v Smith Case, 1990

Just in case you are wondering, the individuals had eaten peyote buttons, full of mescaline, which is a hallucinogen. You can be stoned up to 12 hours.  Do not use peyote and drive.  Also, stay far behind pick up trucks in places like New Mexico and Arizona, which might drive into the direction of the sun.

The Court decision was based on the fact that the law was religiously neutral.   Smith case was a 6-3 decision, with Justice Scalia writing the majority opinion.  Justice Blackmun dissented, joined by Brennan and Marshall.   O’Connor’s filed a separate opinion, concurring with the judgement but not the reasoning.  She wrote that a law which is religiously neutral (generally applicable), may still pose a burden on the practice or conduct of religious beliefs.  Thus, it is a case of competing interests.

Blackmun’s dissent  pursued the same logic, and felt the drug testing was overly broad, noting harm from peyote could not be demonstrated. So,  the First Amendment rights are neither obvious not absolute.   The court had imposed the “generally applicable” test to allow state’s interests to come before consideration of religious freedoms.  The states’ interests or objectives had to be narrowly tailored.   The alternative would be to require  exemptions for individuals’ religious practices,  but  only when this was practical and not be detrimental to the  overall state’s objectives.

But the issues can be complicated pretty quickly.  Congress got involved with the passage of the Religious Freedom Restoration Act (RFRA), in 1993, which I’ll leave to Part III.   The use of peyote  as part of religious practice in now part of the Oregon statutes as an “affirmative defense”,  as given on the Smith  link.

As we will learn in the next couple of blogs,  how far government must go to accommodate religious exercise has been a controversial issue, involving both the courts and the congress.  State governments have also passed laws, in support of religious groups which oppose certain laws on religious grounds.

Wikipedia has listed on the bottom of the Smith case summary, a chronological listing of the “Free Exercise Clause” notable cases starting in 1879 to 2006. There are 16 cases listed.  One notable case, Burwell v. Hobby Lobby, 2014 did not make the list, because it is likely much more related to RFRA than First Amendment rights to religious freedom.  Hobby Lobby was a 5:4 decision, with the more liberal justices (Ginsburg, Sotomayor, Breyer and Kagan) dissenting.

The court has changed its thinking on how to decide these cases, Also, there isn’t a unified doctrine among the members of the court on how the cases should be decided. But based on the decisions which have been made in the past,  the basis or criteria used in deciding between individual liberties and the ability of government to uniformly apply laws has changed as follows:

  1.  1879 to 1963,  Was the law religiously neutral?  Was the law enacted to burden one religion?
  2.  1963 – 1990  (beginning with Sherbert and ending with Smith case),  Are there  compelling interests of the state and if so has the law/ rule been narrowly tailored to these interests?   This is consistent with viewing a laws as remedies to a problems, and they are too broad, they can unnecessarily cause conflicts with religious free exercise.
  3.  Nov 1993 forward –  Added complications of Religious Freedom Restoration Act to subsequent challenges,

So buckle up, there are some twists and turns in the road.  Things in this blog will not only be explained as simple as possible, but to the best of my abilities, even simpler.  Sorry Einstein or whoever said it.

Stay tuned.