This article first appeared in the Daily Journal on January 27, 2012.

In its attempt to modify the basic structure of our nation’s health care system, President Barack Obama’s Affordable Care Act has understandably caused a series of rifts between competing factions within the health care industry.  As the entire nation waits to discover its ultimate fate, the fledgling program continues to promote conflict as it experiences growing pains, exemplified by recent modifications to federal regulations that push the invisible line separating church and state from a health care perspective. With an eye to the future, the Affordable Care Act must move cautiously in its attempt to revamp the foundations of health care, fending not only for its survival in the political arena, but in terms of constitutionality as well.

At its core, the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act (known colloquially as the “Affordable Care Act” or “health care reform”), promotes preventative measures designed in theory to eliminate health issues before they start. With such a sweeping directive, it is certainly understandable that constitutional challenges abound within, yet two of the more recent and most highly publicized concerns stand at opposite ends of the spectrum.

Last week, Health and Human Services Secretary Kathleen Sebelius issued a brief news release detailing a controversial August 2011 interim final rule that was specifically created to require health insurance plans to cover preventative services for women, including contraceptives, without charging a co-pay, co-insurance, or deductible.  Under this interim final rule, however, certain non-profit religious employers retained the option to omit contraceptive services from their employee insurance plan. Announced last week, the final decision now guarantees that women with health insurance as of Aug. 1, will be allowed access to all federally recommended preventative services, including contraception measures approved by the U.S. Food and Drug Administration.

In an effort to assuage dissenters, however, the final ruling offers a loophole of sorts. Under this controversial directive, employers unwilling to provide contraceptive services due to religious beliefs have an additional year, until Aug. 1, 2013, to comply with this final rule.  Subject to certain conditions of verification, this exception is designed to afford these organizations “more time and flexibility to adapt.”  This final rule still raises constitutional concerns among both religious and secular groups, even though the theory separating church and state is never technically mentioned in the venerated document that weighs in at a mere 0.2 percent of the size of modern health care reform legislation.

In response, the U.S. Conference of Catholic Bishops has already announced plans to challenge the law, being morally opposed to the requirement that health insurers grant women access to a range of preventive health services, including birth control and morning after pills.

While the success of this particular federal program remains to be seen, such a loophole makes it quite clear that health care practitioners would do well to brush up on constitutional law, especially since many of the core tenets therein are disposed to a vast array of interpretation from scholars on both sides of the political aisle.

When it comes to matters concerning the Constitution, the U.S. Supreme Court has a knack for making history.  In 1954, Brown v. Board of Education of Topeka, 347 U.S. 483, marked the beginning of the end of four score’s worth of Jim Crow laws, and it paved the way for the 1964 Civil Rights Act and 1965 Voting Rights Act.  In matters related to the separation of church and state, the Supreme Court in Everson v. Board of Education, 330 U.S. 1 (1947), finally established a constitutional floor for the First Amendment:

“[It] means at least this: Neither a state nor the Federal Government can set up a church.  Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another…. No person can be punished for entertaining or professing religious beliefs or disbeliefs…. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion…. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ ”

To be sure, interpreting Jefferson’s meaning behind this “wall of separation between Church and State” did not end in 1947, and advocates from both sides continue today to weigh in from a religious perspective on the debate over contraceptive care for women.  At present, however, whether the importance of preventative care as it relates to the health of our nation outweighs an institution’s fundamental and religious belief that contraception may incur great wrath from above (Genesis 38:8-10) remains to be seen. As a country, we must only wait.

In the meantime, constitutional scholars have their hands full in interpreting the Constitution’s Commerce Clause, and the effect these 16 words (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”) will have on the future of the Affordable Care Act. In December 2010, District Court Judge Henry E. Hudson made health care history when he ruled that the Act was unconstitutional, arguing that it imposed a penalty, rather than a tax, as a means to enforce the health insurance mandate.  Judge Hudson’s summary of the Commerce Clause was ultimately cut short, however, as was his own analysis as to whether the Act’s ability to separate itself from an ignoble mandate was in violation of constitutional law: “The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.” Commonwealth of Virginia v. Sebelius, 728 F. Supp. 2d 768, 789 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011) (vacated on the basis of standing).

The fact that these longstanding constitutional arguments continue to be disputed does not make the practice of health care law easy to interpret in this age of change.  There is a hierarchy within the structure that must be obeyed. As a result, before we as a nation can consider the merits of health care reform, the doctrine of justiciability must first finagle its way over such hurdles as standing, the Commerce Clause, and possibly even the first amendment.

This coming March, when the. Supreme Court listens to five and a half hours of debate, it will take each of these issues into consideration as it rules on whether the current insurance mandate is constitutional, and if not, whether the Affordable Care Act in its entirety must fall along with it. For most in the industry, it is difficult to imagine that the elimination of a single insurance mandate may also condemn health insurance for those up to the age of 26, mark the end of preexisting conditions, and cause an infrastructure of state-run health insurance exchanges to tumble. Neither will most believe that such an adverse ruling would replenish the coffers of health institutions that have spent millions of dollars creating accountable care organizations under the Medicare Shared Savings Program.

Yet when it comes to upholding the basic tenets of our nation’s Constitution, many of us do expect the Supreme Court to honor this most sacred legal doctrine and afford it the respect and attention it rightfully deserves.  Only once the smoke clears at last from the debate over reform may we finally be allotted some time to again discuss a little health care law, without the need to address Jefferson’s beloved line separating religious beliefs from the body politic.