For months, Dean Chemerinsky has been leading the fight, arguing that Obamacare is constitutional under the Commerce Power and the Spending Clause. But, he has finally found a provision he thinks is unconstitutional.
Backed by some of the most powerful members of the Senate, a little-noticed provision in the healthcare overhaul bill would require insurers to consider covering Christian Science prayer treatments as medical expenses.
The measure would put Christian Science prayer treatments — which substitute for or supplement medical treatments — on the same footing as clinical medicine. While not mentioning the church by name, it would prohibit discrimination against “religious and spiritual healthcare.”
Erwin Chemerinsky, dean of the UC Irvine School of Law, said the provision raised serious questions about government support of religion.
“I think when Congress mandates that health companies provide coverage for prayer, it has the effect of the government advancing religion,” he said.
Admittedly, establishment clause jurisprudence is an absolute mess. But, I doubt anyone would be able to find standing to challenge this. Even if standing was found, this is a really weak case for an establishment clause violation. Now this kind seems a bit opportunistic. The entire bill is constitutional, except for a tiny provision that gives churches some money for healing rituals.