Catholic dioceses of Pittsburgh, Erie win injunction against Affordable Care Act

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The right of church-related organizations to keep a clear conscience trumps the federal government's desire to improve access to contraceptives, a federal judge ruled Thursday in a preliminary decision that could set the tone in a legal fight of national scope.

U.S. District Judge Arthur J. Schwab granted an injunction sought by the Catholic Diocese of Pittsburgh, Diocese of Erie and several affiliated nonprofit groups that do not want their insurance administrators to provide what they call "preventive services" coverage.

The injunction allows them to continue to offer insurance that doesn't include contraception, sterilization and abortion-inducing drugs while litigation continues. Without the injunction, the insurance administrators for the organizations -- though not the dioceses themselves -- would have had to start providing the coverage Jan. 1.

"I was relieved, obviously, because the issue that we had been dealing with in this lawsuit is the protection of religious freedom," said Pittsburgh Bishop David Zubik, one of the plaintiffs in the case. "This is an absolutely critical decision. If it has to go to the Supreme Court, I'm moving with it all the way."

A spokeswoman for the Department of Justice, which is handling the defense for the involved federal agencies and officials, declined comment. The department can appeal the decision on the injunction or allow it to remain in place while fully litigating the case.

"I think that obviously the court got it wrong," said Brigitte Amiri, senior staff attorney for the American Civil Liberties Union, which filed an amicus brief opposing the dioceses' position. "We hope that the 3rd Circuit [Court of Appeals] ... would reverse the decision."

The Affordable Care Act requires that most employers provide coverage for their employees starting Jan. 1 that includes the preventive services. Churches are exempt, but church-related nonprofit organizations like Catholic Charities of the Diocese of Pittsburgh and the Prince of Peace Center near Erie are not.

The nonprofit agencies have to file objections to the coverage with their insurance administrators. The administrators then have to provide the coverage to the employees anyway, at no charge to the organizations, and seek reimbursement for the costs through federal exchanges.

Failure to provide the coverage can result in fines that the diocesan organizations claim would total millions of dollars a year.

"We knew there would be at least a $2 million hit annually if there wasn't some protection from the court," said Susan Rauscher, executive director of Catholic Charities. She said she was putting together contingency plans to "keep as many employees employed as we could."

"We're happy that we can do business as usual."

At an evidentiary hearing earlier this month, the dioceses' pro bono attorneys from Jones Day argued that the act forced the organizations to facilitate evil. A Department of Justice attorney argued that the act didn't force church-related organizations to do anything they wouldn't have otherwise done.

"It just can't be that there's a substantial burden on religious beliefs in filling out a form," Ms. Amiri said.

The Department of Justice attorney also reminded the judge that not all of the organizations' employees are Catholic, nor are all of the people they serve.

Judge Schwab, though, adopted the diocesan argument that no distinction could be drawn between the charitable arms of the church and its houses of worship.

The judge wrote in his 65-page opinion that he was ruling on whether "the Government will be permitted to sever the Catholic Church into two parts (i.e., worship and faith, and 'good works') -- in other words, whether the Government will be successful in restricting the Right to the Free Exercise of Religion as set forth in the First Amendment to a Right to Worship only."

The judge wrote that he "is constrained to understand why religious employers such as Catholic Charities and Prince of Peace Center -- which were born from the same religious faith, and premised upon the same religious tenets and principles, and operate as extensions and embodiments of the Church, but are not subsidiaries of a parent corporation -- would not be treated the same as the Church itself with respect to the free exercise of that religion."

"What the judge essentially said in his decision was that faith without works is dead," Bishop Zubik said.

Judge Schwab, who noted at the hearing that he is not Catholic, wrote that the "sanctity of human life from conception to natural death and the dignity of all persons are central tenets of the Catechism of the Catholic Church.

"This belief necessarily prohibits providing, subsidizing, initiating or facilitating insurance coverage for abortion-inducing drugs, sterilization services, contraceptives and related educational and counseling services."

The provision of the coverage, he wrote, could result in "decreased donations, loss of employees to other employers, loss of services" and fines that could force the closure of community assets.

"I'm a bit surprised that the judge seems to equate Catholic Charities and the Prince of Peace Center so closely with the Catholic Church, not recognizing some of the distinctions between the church proper and religiously affiliated nonprofits," said Mary Crossley, a University of Pittsburgh law professor who has watched the issue closely.

"The 3rd Circuit will look at it anew," she said.

There are scores of cases nationally in which religiously affiliated nonprofit organizations are seeking injunctions against the preventive services mandate.

Ms. Amiri said that injunction requests have been decided in just two of the cases -- the diocese lawsuit and one filed by Geneva College. U.S. District Judge Joy Flowers Conti granted the Christian college's injunction request in June.

She added that the legal landscape could change by Tuesday, though, when the Supreme Court is expected to decide whether to hear any of four cases filed by for-profit employers seeking exemptions from the preventive services coverage rule. Any Supreme Court decision on those cases "could give guidance to courts that are considering the nonprofit cases," she said.

Rich Lord:, 412-263-1542 or on Twitter: @richelord.

Rich Lord: or 412-263-1542. Twitter: @richelord. First Published November 21, 2013 4:30 PM

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