October 21, 2011 

Nebraska U.S. Senator Mike Johanns, along with Utah Senator Orrin Hatch, spearheaded a letter to Health and Human Services Secretary Kathleen Sebelius protesting her agency’s regulation that would specifically include contraceptives and sterilization in mandated insurance coverage for "preventive services." Twenty-six other Republican senators signed onto the letter.

The message to the Secretary is spot-on correct. In part it states:

"Whatever the merits of your description of IOM’s (Institute of Medicine) objectivity, relying on IOM does not absolve you of your own obligation as a pubic servant, and a Senate-confirmed executive-branch officer, to consider the ramifications that IOM’s recommendation would have on religious persons and institutions."

And more:

"Ultimately, our concern is with the lack of due consideration given by you and your Department to the adverse impact that IOM’s recommendations would have on our core constitutional value of religious liberty."

The Johanns-Hatch letter also quotes from comments submitted by the Catholic Bishops of Kansas in objection to the preventive-services mandate, which stems from provisions of the federal health-care-reform legislation. Earlier in her political career, the HHS Secretary was the Governor of Kansas. Included in the quoted statements is the Bishops’ description of the policy proposal as the "heavy-handed exercise of federal power."

In addition to Senator Johanns’ involvement, U.S. Representative Jeff Fortenberry from Nebraska’s First Congressional District is the co-introducer of legislation that seeks to trump the coercive impact of the preventive-services mandate and restore respect for religious liberty and rights of conscience.

It appears probable that the U.S. Supreme Court will hear arguments on the constitutionality of a key part of the Patient Protection and Affordable Health Care Act, federal health-care reform legislation, during its current term, which runs until next June. Less than a month ago, the U.S. Justice Department, on the side of upholding the law, decided not to appeal the decision of a three-judge panel of the 11th U.S. Circuit Court of Appeals to the full court. That set up an appeal to the Supreme Court, which is likely to take the case, because there are different appellate decisions in different circuits. And, there might be a ruling prior to the 2012 General Election.

The provision of the law being most specifically reviewed and decided is that which would require all Americans who have taxable income to certify by 2014 that they have health insurance and if they don’t, they would be subject to a tax penalty. Whether or not the law in its entirety is at stake is speculative at best.

Last June, the Sixth U.S. Circuit Court of Appeals sided with the Obama Administration and ruled that the provision is constitutional. In mid-August, the 11th Circuit’s decision was that the insurance-or-penalty requirement is unconstitutional. In early September, the Court of Appeals for the Fourth Circuit tossed out two challenges to the law on various grounds, including lack of standing on the part of the Attorney General of Virginia. Yet pending is a ruling from the D.C. Circuit. Moreover, the current score at the District Court level, according to a report by the Wall Street Journal, is three decisions that uphold the law and two that don’t.

Big issues aside, PPACA is evolving into a great civics lesson, involving the roles and power of all three branches of government: Executive, Legislative and Judicial. What’s more, interpretations of the U.S. Constitution on a matter as pervasive as health care constitute a fascinating dimension of the public-policy processes.

And finally, from another realm…. Do you think some of those snooty Big-Ten-Conference traditionalists paid attention to the fact that newcomer Nebraska already has won its first conference championship? Kudos to NU’s speech and debate team. The margin of victory nearly doubled the score of runner-up Northwestern. Some Big-Ten old-timers probably assumed Nebraska was just a volleyball and football school.