Religious exemptions to the PPACA's health insurance mandate.

CONTENTS I. INTRODUCTION 625 II. ANALYSIS OF THE PPACA RELIGIOUS CONSCIENCE EXEMPTION IN LIGHT OF THE SOCIAL SECURITY PROGRAM 628 A. The Existing Religious Conscience Exemption from the Social Security Program 628 B. Legislative Purpose: Distinguishing the PPACA from the SSA 632 III. THE CONSTITUTIONALITY OF THE RELIGIOUS CONSCIENCE EXEMPTION AS CURRENTLY WRITTEN 633 A. The PPACA is a Neutral, Generally Applicable Federal Law that Incidentally Burdens Religion 633 B. The Potential Application of RFRA to the PPACA 634 C. Potential Establishment Clause Concerns with the Religious Conscience Exemption 637 D. The PPACA Likely Does Not Violate the Free Exercise Clause 640 IV. Effect of the Religious Conscience Exemption on the PPACA 641 A. The Religious Conscience Exemption Interferes with Three of the Act's Purposes 641 B. The Religious Conscience Exemption is Not Needed for the PPACA to be Constitutional 643 C. The Health Care Sharing Ministry Exemption, Properly Regulated, Better Protects the Values Underlying the PPACA ...... 644 V Conclusion 650 I. INTRODUCTION Arguably the most controversial change to the U.S. healthcare system written into the Patient Protection and Affordable Care Act1 ("PPACA" or the "Act") is what has been colorfully termed the Act's "individual mandate," the provision that establishes tax penalties for those who do not maintain health insurance in 2014 and beyond.2 Though the health insurance mandate does not go into effect until 2014, it has already faced numerous constitutional challenges in district and circuit courts, with entirely inconsistent results.3 Conflicting decisions regarding the Act's constitutionality at the circuit court level cry out for Supreme Court review. But while the individual mandate's validity under either the Commerce Clause or Congress's taxing power has been the focal point of litigation thus far, another aspect of the individual mandate may undermine the goal of establishing universal, affordable healthcare coverage for all Americans. As currently written, the religious conscience exemption from the PPACA's individual mandate threatens the efficacy of the Act and potentially exposes it to legal challenges under the Constitution's Religion Clauses.4 In addition to establishing tax penalties for those who do not maintain "minimum essential coverage," section 1501 of the PPACA also creates exemptions from those penalties.5 Under the heading "religious exemptions," the Act sets out two distinct categories of individuals who are exempt from the tax: those with a "religious conscience" objection to insurance and those who are members of a "health care sharing ministry."6 The religious conscience exemption applies to anyone who is "a member of a recognized religious sect or division thereof described in § 1402(g)(1) [of the Internal Revenue Code]" and meets the additional requirements laid out in that section.7 The additional requirements limit the exemption to (1) sects that "make provision[s] for their dependent members which [are] reasonable in view of their general level of living," and (2) sects that have "been in existence at all times since December 31, 1950. …