Boycotting Abortion: Has Obamacare Been Sunk by Citizens United and the NAACP v. Claiborne Hardware?
[Guest post by Aaron Worthing; if you have tips, please send them here.]
The mandate itself was upheld under the commerce clause using logic that explicitly mirrored the Michigan case a few months back. That case rested on the bizarre notion that doing nothing was economic activity, because everyone would need health care eventually. What this ignores is that we have a right to refuse treatment, meaning that it is not a given that we will need health care eventually. Yes, most of us won’t, but the fact that you can refuse to take medical care means that you cannot say that a person will definitely use health care eventually and thus participate in this interstate commerce.
And they go on to assert various religion clause challenges. I think they do raise troubling aspects of current Supreme Court jurisprudence, but that is the decisions the Supreme Court has made, and they are not likely to be fixed anytime soon.
But one argument stopped me. They also challenged this on first amendment free speech grounds. This was the first time I had seen someone raise this, so I was intrigued. Let me take the arguments a little out of order. Here’s what the judge says about the “second” speech related argument:
Plaintiffs’ second argument for infringement is that the mandatory payment for health insurance, or any payment of “fines, fees and taxes” imposed by the Act, are being used to subsidize speech with which Plaintiffs disagree; specifically, the funds are being used to cover abortion services… Free speech protection is implicated where the government requires an individual to subsidize a private message with which he disagrees… Such forced subsidies of speech were held to be unconstitutional where nonunion public school teachers were required to pay a fee to unions that was used to fund political speech…, and where lawyers admitted to practice in California were forced to pay a state bar association which it used for political expression[.] But free speech rights are not violated where the individual is required to subsidize a government message with which he disagrees.
Now I only know of the Plaintiffs’ argument by what the court says about it. But if their argument is that abortion is speech, I think it’s a non-starter. Abortion is conduct. Good or bad, that is what it is.
But in making their argument, a different argument occurred to me. You see, under Citizens United, corporations are now fully free to participate in the political process. So guess what? Forcing you to buy products from any corporation is equivalent to forcing you to subsidize that corporation’s political speech. And, as the court noted, it is unconstitutional to force anyone to subsidize a private individual or organization’s speech.
But it gets worse. The court also addressed two other free-speech related arguments. First was the right to associate, stated and dismissed as follows:
Plaintiffs allege that they hold the religious belief that they should not associate with those who support or engage in abortion. In that case, the problem is the possibility of Defendants’ infringement on Plaintiffs’ free exercise of their religious belief not to “yoke” themselves with others. No impairment of their ability to associate with others to engage in activities protected by the First Amendment appears to be alleged. As Defendants correctly point out, the requirement to purchase health insurance does not prevent Plaintiffs from expressing their views about anything and does not require them to endorse a view with which they disagree.
Then on the more direct speech claim, the court writes “according to the Plaintiffs, decisions about paying for health care are a form of speech.” And thus the argument goes, forced payment is forced speech. Freedom of speech, after all, is the freedom to refuse to speak, right? But the court waives off this concern by saying “[o]btaining a health care policy is a commercial transaction that reflects a personal choice about the best mix of coverage and price that serves one’s medical needs.”
But pause for a second. Is it purely a commercial transaction? Is there any expressive element to it? Or more precisely, is there an expressive element to refusing to engage in a transaction, ever?
Of course there is, and it is one of the oldest forms of expression known: the boycott.
Liberty University and the scattered individuals who sued in this case have a constitutional right to refuse to associate with any entity that engages in abortion, to boycott it (and this is true of any issue, not just abortion). Even if none of their money touches an abortion doctor’s hand, they are allowed to say, “as long as you allow this, I will not contribute my money to your company. I will not associate with you.”
In NAACP v. Claiborne Hardware Co., the Supreme Court said that “[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.” The same would assuredly apply to the Federal Government. And yet this decision has effectively said that where interstate commerce is involved (and according to the court it is always involved in everything, apparently), Congress can effectively outlaw the boycott.
I mean consider a simple example. Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested. In response Martin Luther King, Jr. and many others lead a boycott of the bus system. But, according to the court in Liberty University, Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.
Now I don’t know what Liberty University said in its briefs or in oral argument. But whether they knew it or not, they managed to highlight something everyone else had missed. It is not merely a matter of Congress not having the power to enact the mandate (although it doesn’t). It is not merely the fact that this conflicts significantly with the Supreme Court’s decisions on privacy. It is that the first amendment grants an affirmative right to refuse to purchase a good or service, that this law treads upon.
And of course, you know what happens when you tread on people, right?
[Posted and authored by Aaron Worthing.]