Kong

Opinion by Judge NOONAN; Concurrence by Judge McKEOWN; Concurrence by Judge RAWLINSON

OPINION

David Kong appeals the judgment of the district court upholding as constitutional on its face and as applied section 4454 of the Balanced Budget Act of 1997. This *1134 law effected amendments to 42 U.S.C. § 1320 and 42 U.S.C. § 1395 in order to permit payments under Medicare and Medicaid Acts for the nonmedical care of persons whose religious tenets lead them to reject medical services. The district court held that these amendments were not an establishment of religion. We affirm the district court.

THE AMENDED STATUTES

42 U.S.C. § 1320c-ll, as amended by the Balanced Budget Act, reads:

42 U.S.C. § 1395x(e), as amended in its definitions, defines “hospital” to include

42 U.S.C. § 1395x(y)(l), as amended, reads:

The cross-referenced section x(ss)(l) reads in relevant part as follows:

42 U.S.C. § 1395Í-5, Conditions for coverage of religious nonmedical health care institutional services, as amended, reads in relevant part:

The term “nonexcepted medical treatment” means medical care or treatment (including medical and other health services) other than excepted medical…

concurring:

I agree that accommodation of individuals who are religiously opposed to medical care, including Christian Scientists, is appropriate, but conclude that the statute must be read to encompass both religious and nonreligious beliefs in order to pass constitutional muster. As Justice O’Con-nor succinctly explained in Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 , 114 S.Ct. 2481 , 129 L.Ed.2d 546 (1994), “[rjeligious needs can be accommodated through laws that are neutral with regard to religion.” Id. at 714 , 114 S.Ct. 2481 (O’Connor, J., concurring). This principle best reflects our current understanding of the Religion Clauses: although “[pjerhaps in the early days of the Republic” the words of the Free Exercise and Establishment Clauses “were understood to protect only the diversity within Christianity ... today they are recognized as guaranteeing religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.’ ” County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 590 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 (1989) (quoting Wallace…

concurring:

I concur in the result. I write separately to emphasize that, in my view, the Eighth Circuit’s analysis in Children’s Healthcare v. Min De Parle, 212 F.3d 1084 (8th Cir.2000), should carry the day.

In Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335 , 107 S.Ct. 2862 , 97 L.Ed.2d 273 (1987), the United States Supreme Court recognized that “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”

As the Eighth Circuit noted, the Medicare provisions, without any accommodation to the beliefs of the Christian Scientists, would significantly burden their religious practice. For example, Medicare’s requirement that a doctor certify eligibility for hospice care is the antithesis of the Christian Scientists’ fundamental beliefs, which eschew any medical treatment in the conventional sense. This and other medically based provisions impose a significant burden on the Christian Scientists’ exercise of their religion.

The fact that, so far, only Christian Scientist sanitaria qualify as RNMHCIs is…