Jan. 1 deadline set for dioceses in birth control mandate fight

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A federal judge set the clock Thursday on a challenge by several Catholic organizations to the Affordable Care Act's birth control mandate, drafting a schedule tailored to avoid any emergency Christmas week appeals.

Organizations affiliated with the Diocese of Pittsburgh and the Diocese of Erie face Jan. 1 deadlines to either provide health insurance coverage for birth control, sterilization and abortion-inducing drugs -- or file statements of objection. Either way, they argue, they would be violating their religious principles.

"I need to hear and see the articulation of some of these issues, and the consequences of those issues," said U.S. District Judge Arthur J. Schwab, after hearing from attorneys for the diocese and from the Department of Justice, which is defending the law. He said live testimony is needed "because I want to start judging some credibility."

He set a Nov. 12 date for a hearing with witnesses, which would set the stage for his decision, by early December, on whether groups such as Catholic Charities of the Diocese of Pittsburgh are subject to the birth control mandate. That would give the losing side time to appeal well before Jan. 1.

"The process you described, your honor, we're thrilled with," said attorney Paul Pohl, representing both dioceses. "We think it's right on."

Attorney Brad Humphreys, for the Justice Department, seemed less thrilled, arguing that Judge Schwab should decide the issue solely from "the administrative record" describing how the rules were crafted.

The Diocese of Pittsburgh is self-insured through the Catholic Benefits Trust, which includes around 230 religious organizations, including parishes, schools and two other dioceses. Around 2,200 employees and 1,300 dependents are covered.

The act's requirement to cover birth control doesn't bind churches but does apply to related nonprofit organizations, such as Catholic Charities.

Those organizations can fill out forms saying that they object to providing the coverage. Then, their insurer or insurance administrator must provide the coverage free of charge and can recoup any costs through the government-sponsored health insurance exchanges.

Mr. Pohl said that even sending in the form objecting to the coverage would violate his clients' beliefs, because it would cause the insurer or administrator to provide birth control.

"You are doing affirmative acts to provide [employees] with services that you find morally objectionable," said Mr. Pohl. His clients believe that could constitute "facilitating or enabling evil," he said.

Judge Schwab said he wants to explore whether "sending the form in" objecting to the coverage is legally different from paying for the coverage directly.

He said he also needs to know what happens if an organization refuses to pay for the coverage and also declines to fill out the objection form. "If somebody refuses to send the paper, for religious purposes, who comes to assess the [$2,000 per employee, per year] fine?" he asked.

The court fight is one of dozens challenging the act nationally. Mr. Pohl said that his firm, Jones Day, is representing 60 religious organizations in 17 separate lawsuits challenging the act's birth control mandate.

Rich Lord: rlord@post-gazette.com, 412-263-1542 or Twitter @richelord. First Published October 24, 2013 1:21 PM

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