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In New Term, Supreme Court will Weigh in on Religious Liberty and the Fate of Obamacare


The US Supreme Court begins its new term, per tradition, on the first Monday of October. This term, it is one justice short due to Ruth Bader Ginsburg’s death. That could be a factor in important cases, such as ones that could affect religious liberty and maybe your healthcare.

Catholic Foster Agency Tossed for Its Biblical Belief

The main religious liberty case involves a Philadelphia Catholic foster care agency which was tossed out of placing foster children for the city because the agency – for biblical reasons – wouldn't hand kids over to same-sex married couples. The question in Fulton v. City of Philadelphia is whether the city has infringed on the Catholic agency's religious liberty.

Former US Solicitor General Paul Clement explained that since same-sex marriage was legalized and sexual orientation is now protected against most forms of discrimination, this is a matter of looming concern when it comes to religious liberty.

“That issue is kind of lurking behind the scenes and is an issue that the Court will have to resolve one of these days, one way or the other,” Clement said.

Georgetown University Law Center Professor Martin Lederman thinks Philadelphia has a strong case, but stated, “Many of the justices think Philadelphia – even if the Constitution didn’t compel it – the city ought to have granted a religious exemption in these circumstances. It ought to be conciliatory now that same-sex marriage has been recognized as constitutionally protected.”

Ginsburg’s Death a Blow to the Court’s Liberals

A huge difference this term is the absence of Ruth Bader Ginsburg.  This likely means less power for the liberals she led and more for the conservative-leaning justices.

And that’s why all eyes are on the confirmation process of Judge Amy Coney Barrett, President Trump’s choice to replace Ginsburg.

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Associated Press Supreme Court reporter Mark Sherman said of Barrett, "Her record shows that she'll be a justice, as she said, more in the mode of Justice Scalia than in the mode of Justice Ginsburg.  And that's precisely what the Democrats are afraid of."

Could the Court Mortally Wound Obamacare?

Obamacare is once more on the line this term. In the consolidated cases of Texas v. California and California v. Texas, the justices will decide if the Individual Mandate that forced Americans to get health insurance is unconstitutional. And if they rule it is, they must decide whether that then kills the entire Affordable Care Act.

Senate Democrat Dick Durbin says it will, stating, “That case, filed by 14 Republican attorneys general and the Trump administration, will eliminate the Affordable Care Act. Not change it. Eliminate it.”

Pushing the Healthcare Panic Button

And that’s the case Democrats are using in order to make their main argument against both President Trump and Amy Coney Barrett. They maintain Trump wants to kill Obamacare and that Barrett's the justice who would help do it.

Senate Minority Leader Chuck Schumer (D-NY) said of the nominee, “If she gets on the Court, it’s a virtual certainty that over 150 million Americans’ healthcare will be hurt dramatically.”

Democratic Vice Presidential candidate Sen. Kamala Harris said if the high court rules against Obamacare, “It’s a decision that could take away healthcare for 20 million Americans.”

Legal Scholars Doubt This Is the Right Case to Kill Obamacare

Most legal scholars don't agree because they say this case about the Individual Mandate has little chance of actually destroying the whole Obamacare law. If the justices rule against the Mandate, they’ll likely use what’s called the severability doctrine and sever the ruling against the Mandate from harming the rest of Obamacare.

And a former Barrett colleague insisted it's ridiculous to assume Barrett’s vote is already decided before the case is even heard.

Notre Dame Law School Professor Nicole Garnett said of Barrett, "It is her conviction, and she has said over and over again, whatever her personal, political or religious beliefs, her fidelity is to the rule of law first, foremost and only."

Court Split 4-4 Could Mean Trouble if Election Is Disputed

But until there’s a Senate vote on the nominee, the Supreme Court is split 4-4.

That could cause real trouble if the presidential election is contested and the Court has to basically pick the president as it did in Bush v. Gore back in 2000. 

President Trump weighed in, saying, "I think this will end up in the Supreme Court. And I think it is very important that we have nine justices."

Could Roe Go as Conservative Wing Grows?

Another big question is whether a growing conservative wing of the Court could use the next abortion case to weaken or even overrule Roe v. Wade, which legalized abortion nationwide.   

No abortion cases are on the docket now, but that could change. Two cases loom on the horizon.

One involves whether Mississippi can ban abortions from 15 weeks on.  

And the other would decide whether it's an undue burden during a pandemic to require women to see a doctor in person to get the drugs needed for a medication abortion.

COVID-19 Jitters Mean Justices Will Phone It In

One interesting thing this term: fears of the coronavirus still have the justices spooked. So they’ll be doing all of October’s cases by phone. The benefit for the public is they’ll be able to listen in to these hearings, which otherwise would not be broadcast.  

Do you support the Constitutional process for a full-court? Check out CBN’s Faith In Action petition to Fill the Supreme Court.

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