Diocese of Pittsburgh Bishop David Zubik testifies in Affordable Care Act case



Portraying contraception coverage rules as a "slippery slope" eroding freedom of religion, Bishop David Zubik told a federal judge Tuesday that he would not sign forms that would cause insurance administrators to provide "morally illicit" medicines and procedures.

He was joined by other officials from Catholic organizations, who said they would brave million-dollar fines for violating the Affordable Care Act in order to maintain the integrity of their beliefs -- but added that those fines would cripple their charitable work.

"Fewer people would be sheltered. Fewer meals would be served," said Susan Rauscher, executive director of Catholic Charities of the Diocese of Pittsburgh, after estimating that her agency would face fines of $2 million or more if it bucked the act. "Emergency food assistance wouldn't be available."

Bishop Zubik outlines opposition to parts of Obamacare

Diocese of Pittsburgh Bishop David Zubik testified that the Affordable Care Act's mandate that insurers cover contraception, sterilization and abortion-inducing drugs violates the tenets of the Catholic Church. (Video by Nate Guidry; 11/12/2013)

The officials spoke at a hearing before U.S. District Judge Arthur J. Schwab in Pittsburgh, who will decide whether to grant an injunction allowing Catholic Charities and Erie-area Catholic institutions to ignore the act's contraception coverage rules, which kick in on Jan. 1. Judge Schwab -- who noted that he is not Catholic -- said he will quiz the attorneys for both sides at a follow-up hearing this morning.

The bishop, the diocese and Catholic Charities are plaintiffs in one of the scores of lawsuits nationwide targeting the preventive services mandate of the act. The Diocese of Erie and affiliated entities are plaintiffs in a similar lawsuit also heard by Judge Schwab.

Together, the dioceses claim some 900,000 members and anchor organizations that provide many services. Catholic Charities, officials said, provides 230,000 services annually to 81,000 people.

Under the act, churches are exempt from rules requiring insurance coverage for contraception, sterilization and abortion-inducing drugs. But separate nonprofit entities like Catholic Charities would have to either provide coverage for preventive services or "self-certify" that they object.

If they objected, they would have to provide lists of their employees to their insurance administrators. The administrator would then provide cards to those employees that would entitle them to preventive services.

The administrators would recoup any costs through government health insurance exchanges.

Attorney Brad Humphreys, representing the Department of Justice and defending the Obama administration's signature law, suggested the act doesn't force the organizations to do anything that they aren't already doing.

The Catholic officials conceded that the act's paperwork isn't onerous but added that the very act of objecting to the coverage would cause insurance administrators to provide services they view as sinful.

"Yes, it takes a few minutes to sign [the objection form], but the ramifications are eternal," said Erie Bishop Lawrence T. Persico.

Organizations that failed to either provide preventive services coverage or file the objection form causing their administrators to provide it would face fines of $100 per day per employee, officials testified.

The Rev. Scott W. Jabo, president of Erie Catholic Preparatory School, said that institution would "have to shut our doors completely" if it had to pay the fines associated with failing to comply with the mandate.

"The issue is not the amount of money," Bishop Zubik said. "The issue is the integrity of our beliefs."

"Is it your intent that you will not sign the self-certification form?" Judge Schwab asked Bishop Zubik.

"That would be my intent," the bishop said, even though it would subject Catholic Charities to fines.

After the hearing, the bishop added that the independence of the church is at stake.

"The government is now reversing what our founding fathers said was religion," which included not just worship, but also living by one's beliefs, he said. "Don't force us to do anything that goes against our conscience, even indirectly."

Mr. Humphreys objected to all of the testimony at the hearing, saying Judge Schwab should decide the matter based on 185,000 pages of records describing the decision-making process leading to the rules. Attorneys from law firm Jones Day, which is representing the diocese pro bono, countered that there are really 7 million pages of records, some of which have yet to be produced.

"Well, we're not going to look at 7 million pieces of paper for a preliminary injunction hearing," Judge Schwab said.

He said that legal arguments, including friend-of-the-court briefs, are due by Friday.

The American Civil Liberties Union has submitted a friend-of-the-court brief siding with the government. Witold "Vic" Walczak, legal director of the ACLU of Pennsylvania, said after the hearing that church officials are "trying to control the non-work lives of their employees" by denying them coverage for the preventive services.

"If being Catholic and pledging to abstain from birth control are not job requirements, then the employer should not be able to force those beliefs on employees outside the workplace," Mr. Walczak.

Judge Schwab has said that he hopes to decide on the organizations' injunction request by early December.

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


Rich Lord: rlord@post-gazette.com or 412-263-1542. Twitter: @richelord. First Published November 12, 2013 10:53 AM

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