- - Wednesday, December 25, 2013

Healthcare.gov continues to be the public face of the failure of Obamacare even as the legal foundations of the health care scheme continue to shatter. Earlier this week, the Roman Catholic archbishop of the District of Columbia appealed a federal court ruling that a certain Catholic college is entitled to protection against the health care law’s abortion and contraceptive mandates, and others aren’t. The archbishop’s appeal is likely to be the strongest challenge to Obamacare yet.

While most Americans were Christmas shopping, a court in the District ruled that a small, liberal arts school in Santa Paula, Calif., won’t have to pay for the contraceptive devices, abortions and sterilizations of its employees. Thomas Aquinas College covers employees through an unusual self-insurance trust that is not church-sponsored.

Rather than strike down the entire mandate as a government intrusion into personal and religious freedom, as she should have, Judge Amy B. Jackson seized on this narrow distinction to rule that the one college is exempt because it would be directly involved in crafting a morally objectionable insurance plan. “In the case of a self-insured entity like Thomas Aquinas, the newly enacted regulations fall short of the mark,” Judge Jackson said. The Obamacare rules “compel the organization to take affirmative steps — to do something — that is in conflict with the tenets of its faith.”

All other educational institutions with health plans administered through the church must beg for an “accommodation” that creates the illusion that the school isn’t directly funding coverage for contraception, abortion and sterilization. Obamacare requires that such coverage must still be available, it merely shifts the costs to the insurance company. It’s a fig leaf, and a small one, since the insurance company will surely pass the cost on to the religious institution.

Judge Jackson said she was “not persuaded” that “the ‘cost-neutrality’ of providing contraceptive services results in premiums being used to pay for contraceptive services.” Perhaps in a courtroom a judge can pretend that taking money from the right-hand pocket and moving it to the left-hand pocket makes a difference, but schools and other religiously affiliated institutions answer to a higher court, a right enshrined in the First Amendment, and written in English so plain that even a judge should understand it. Schools are left to choose from among three unacceptable options: Do what they know to be wrong; drop insurance coverage for their employees; or, pay enormous fines. Judge Jackson’s ruling sets out a new option: Set up a self-insurance trust and escape the Obama administration’s attempt to water down their faith.

Religious institutions shouldn’t be required to jump through hoops. The First Amendment guarantee of freedom of religion must never be denied based on technicalities of interest only to certified public accountants. When that’s all that keeps President Obama’s health care scheme propped up in the courts, the scheme will surely collapse of its own weight (and it doesn’t weigh much).