PHILADELPHIA — A lawyer for the federal government argued before an appeals court Wednesday that it is not coercive to require a Western Pennsylvania evangelical college and two Catholic dioceses to file paperwork opting out of paying for contraceptive coverage, even though their employees would then be provided access to the services by an insurance administrator.
Geneva College in Beaver Falls and the Catholic dioceses of Pittsburgh and Erie won the initial rounds of cases in which they argued that even registering their refusal to pay for the contraceptive coverage would violate their convictions because that action would prompt insurance administrators to provide the coverage to their employees.
Houses of worship are exempt from the requirement, but religious nonprofit organizations, such as Catholic Charities in Pittsburgh, are required to file the paperwork or face fines.
Mark Stern, a lawyer with the Department of Justice, argued before three judges of the U.S. Court of Appeals for the Third Circuit that the government is not asking too much by requiring the organizations to formally opt out of the coverage or face a fine.
“If you’re going to provide insurance, you have to tell your insurance company what you want provided,” he said. “All the plaintiff has to do is tell the government, ‘I’m out.’”
But Mickey Pohl, who represents the Catholic dioceses, said that action still causes the services to be provided when they otherwise would not. “That’s where you become complicit,” he said.
Gregory Baylor, who represents Geneva College, made the same point: “Geneva can’t take the chance it will be complicit in even one death.”
The college, which belongs to the theologically conservative Reformed Presbyterian Church, objects to offering two forms of emergency contraception, taken after sex, and two forms of intrauterine devices, on the belief that these cause abortions, Mr. Baylor said. The Catholic dioceses also oppose offering coverage of sterilization and birth control pills, Mr. Pohl said.
“The Church isn’t trying to sue to keep women from getting them if they independently want them,” Mr. Pohl said later. “It just doesn’t want its plans involved in doing that.”
The American College of Obstetricians and Gynecologists says the medicines and devices approved by the FDA as contraceptives do not cause abortions, with emergency contraception pills inhibiting ovulation, the release of an egg, and IUDs preventing sperm from reaching the egg, with one kind of IUD also possibly preventing ovulation.
Theodore Ruger, a professor at the University of Pennsylvania Law School, said the religious organizations won a significant victory with the Supreme Court’s finding in June that corporations could cite religious belief to be exempted from offering insurance that pays for contraception.
He called the efforts in the cases heard Wednesday, to avoid registering an objection to providing coverage, “something much more extreme.”
“There is a certain point at which institutions operating in a pluralist society need to abide by the regulatory requirements of that society,” he said. “These institutions have already got their first-order exemptions from the contraceptive mandate, and the fact they’re running back to court now to get out from under a very sensible workaround solution suggests they’re very hostile to the fundamental rights of women to access health care.”
Before the June ruling, known for one of the companies that brought suit, Hobby Lobby, the courts had turned a somewhat careful eye to claims of that someone’s religion had been burdened, said Haider Hamoudi, a professor at the University of Pittsburgh School of Law.
“Now I think under Burwell v. Hobby Lobby it seems to be so long as they allege this is a substantial burden on their religion, that’s enough,” he said. “It makes more substantial [the] claim on behalf of Geneva College.”
Karen Langley: email@example.com or 1-717-787-2141 or on Twitter @karen_langley.