Pittsburgh diocese, DOJ argue over healthcare mandate and 'substantial burden'

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Attorneys for the Catholic Diocese of Pittsburgh and the Department of Justice today argued whether the Affordable Care Act places a "substantial burden" on religious nonprofit groups, in advance of a preliminary decision that U.S. District Judge Arthur J. Schwab could issue by month's end.

The argument followed a day of testimony Tuesday from officials of Catholic organizations, including Bishop David Zubik. At issue is whether the federal government's rule allowing religiously affiliated nonprofits to object to "preventive services" coverage -- but compelling their insurance administrators to provide that coverage anyway -- violates the First Amendment guarantee of freedom of religion.

Both sides agreed that, legally, it comes down to whether the act substantially burdens the practice of religion.

Attorney Brad Humphreys, from the Department of Justice, said that organizations like Catholic Charities of the Diocese of Pittsburgh just have to tell the companies administering their insurance that they object to coverage of contraception, sterilization and abortion-inducing drugs. Then those companies will provide the coverage, free of charge.

"Catholic Charities needs not do anything other than what it already does," Mr. Humphreys said. "There's no burden on the plaintiffs that results where the conduct is undertaken by a third party," like an insurance administrator, he added.

Attorney Paul "Mickey" Pohl argued for the diocese that in the sincere beliefs of the Catholic organizations it "is a moral evil to be complicit in violation of [church] precepts" regarding sexuality.

"They become a delivery vehicle for goods and services that they believe are morally objectionable," he said.

If the organizations don't fill out the form objecting to the services, they face fines of $100 per day per employee, he said, characterizing that as "potentially the financial death penalty, or dismemberment penalty."

For Catholic Charities and the Erie Catholic Preparatory School, for instance, that would mean about $2.9 million in fines, he said.

Churches are exempt from the act's coverage rules, but nonprofit organizations with religious missions are not.

Judge Schwab asked whether that rule was the least restrictive way to reach the government's goals.

"Wasn't another alternative to broaden the definition of a religious employer?" he asked.

Mr. Humphreys said if the definition was broader, "then those employees would not have access to the services that Congress considered important."

The act's coverage rules take effect Jan. 1, but the Catholic groups want an injunction temporarily exempting them.

Judge Schwab had previously said that he hoped to decide on the injunction by early December, but today both sides said that he held out hope for a November decision.

Any decision is likely to be appealed.

Diocese of Pittsburgh - ACA - Obamacare

Rich Lord: rlord@post-gazette.com or 412-263-1542. Twitter: @richelord.

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