Western Pennsylvania's Catholic groups won another round in their fight against the Affordable Care Act's contraception mandate Friday, likely setting up an appeal by the federal government as the cases climb the ladder toward the U.S. Supreme Court.
U.S. District Judge Arthur J. Schwab's decision granting permanent injunctions in lawsuits filed by the Roman Catholic dioceses of Pittsburgh and Erie against federal agencies and officials puts those cases among a handful nationally that are ready for appeals courts.
It also breaks a tie as 43 lawsuits against the mandate by religious organizations inch through federal courts. Prior to Friday, the Catholic Archdiocese of New York had won its case, while a group called Priests for Life saw its bid dismissed.
"The government will likely appeal to the next level," which is the 3rd U.S. Circuit Court of Appeals, Bishop David Zubik of the Pittsburgh diocese wrote in a statement. "But the government will then have to convince those judges that there were legal flaws in Judge Schwab's decision, a decision based on a fulsome record of evidence we submitted with little evidence submitted by the government.
"As a result, getting this case reversed could be difficult, like trying to reverse a referee's decision on the football field."
Requests for comment from the Department of Justice, which is defending the cases for the federal agencies, received no response.
"We disagree with the court," said Jennifer Lee, staff attorney at the Center for Liberty of the American Civil Liberties Union, which has backed the government in the contraception mandate cases. "While religious freedom is fundamental, it does not permit the plaintiffs to discriminate against their female employees and prevent third party insurance companies from providing contraceptive coverage."
The act compels most employers to provide health insurance that includes coverage for contraception, reproductive counseling and abortion-inducing drugs. Churches are exempt.
Religious nonprofit organizations, though, get what's called an accommodation. They must tell their insurance administrators that they object to that coverage. The administrators must then provide the coverage to all employees at no charge to the organization, and seek federal reimbursement.
Last month Judge Schwab granted a preliminary injunction to the nonprofit organizations tied to the two dioceses. He found that the accommodation required them to act against conscience, violating freedom of religion.
On Friday attorney Paul "Mickey" Pohl, representing the Catholic organizations, filed a motion asking to make the injunction permanent. Department of Justice attorneys filed a notice confirming that because the judge has already found in the Catholic groups' favor, and there is no new evidence to present, they did not oppose ending the case.
"In doing so, defendants in no way suggest that they agree with plaintiffs' characterization of the issues raised in these cases," the government attorneys wrote. "Defendants respectfully reserve all arguments stated in their oppositions to plaintiffs' motions ... for the purposes of appeal."
The bishops, the judge then wrote, "shall not have to sign or authorize any entity under their control to sign the self-certification form" triggering contraception coverage.
He then closed the case.
Had they not received an injunction, and had they refused to trigger the accommodation process, organizations like Catholic Charities of the Diocese of Pittsburgh and the Prince of Peace Center near Erie could have faced fines estimated at millions of dollars each year.
They remain subject to other provisions of the act.
"This has never been an argument over the Affordable Care Act," Bishop Zubik wrote in his release. "The Church has always supported universal access to health care coverage for everyone."
Judge Schwab's ruling doesn't affect any organizations other than the plaintiffs.
Will it have broader ramifications as it moves through the appeal process? That depends on how the U.S. Supreme Court decides to handle the 43 cases brought against the mandate by church groups, 46 brought by businesses and two class-action lawsuits.
The fact that the Pittsburgh and Erie dioceses have won permanent injunctions puts them at the head of the pack, increasing the chance that they'll get to the nation's top court, said Kyle Duncan, general counsel for The Becket Fund for Religious Liberty. That organization is involved in several lawsuits against the mandate, though not the Western Pennsylvania cases.
The Supreme Court could decide some of the involved issues when it rules on the business cases. The nine justices are expected to hear in March arguments in cases brought by Hobby Lobby Stores Inc. and other firms with religious owners. That would likely lead to a June decision on whether the contraception mandate applies to them.
"You have the government saying, look, all we're asking to do is make a benefit available," said Mr. Duncan. "The employer is saying, no, you are forcing me to underwrite, subsidize, facilitate very specific kinds of benefits."
A Supreme Court decision on the business cases may not address all of the issues in the church group lawsuits.
That's because the religious organizations have the accommodation under the act, which the businesses don't have, said Ms. Lee. In the ACLU's view, the accommodation eliminates any burden that the mandate would otherwise place on the religious groups.
Mr. Duncan disagreed, saying the accommodation doesn't address "a pretty important question of moral complicity."
Rich Lord: firstname.lastname@example.org.
Rich Lord: email@example.com or 412-263-1542. Twitter: @richelord. First Published December 20, 2013 1:20 PM