Bishop Zubik lead plaintiff in Obamacare challenge in Supreme Court
March 21, 2016 12:00 AM
Sister Grace, along with other residents of the Little Sisters of the Poor home, prays Friday and daily at the Divine Mercy Chaplet on the North Side for a favorable outcome in the Supreme Court.
Raffaela Salvagna, a resident of the Little Sisters of the Poor home, prays Friday and daily at the Divine Mercy Chaplet on the North Side for a favorable outcome in the Supreme Court.
By Tracie Mauriello / Post-Gazette Washington Bureau
WASHINGTON — After six years, three U.S. Supreme Court cases and dozens of failed repeal efforts in Congress, the Affordable Care Act remains the law of the land, but opponents are still fighting it.
Their next opportunity to chip away at President Barack Obama’s signature domestic policy achievement comes Wednesday.
That’s when the Supreme Court hears oral arguments that pit faith-based groups’ rights to follow religious tenets against women’s right to access free birth control.
Bishop David A. Zubik of Pittsburgh is at the center of the court challenge as the lead petitioner in a joint appeal by the Roman Catholic dioceses of Pittsburgh and Erie.
Known as Zubik v. Burwell, the case before the Supreme Court actually involves seven consolidated court challenges filed against Health and Human Services Secretary Sylvia Burwell by various religious schools, colleges, hospitals and charities.
Some supporters of the challenge have said it should be named for the Little Sisters of the Poor Home for the Aged in Denver, which filed another of the consolidated cases. The sisters have been vocally carrying the cause, and local members in Pittsburgh have been praying the rosary every afternoon in prayer for a favorable outcome.
Other plaintiffs also have local ties. They include Geneva College in Beaver Falls, which is affiliated with the Reformed Presbyterian Church of North America, and Cardinal Donald Wuerl, the former Pittsburgh bishop who now is archbishop of Washington, D.C.
They are fighting a provision of the the Affordable Care Act that makes free birth control available to students and employees of religiously affiliated institutions such as schools, hospitals and social service agencies.
They say the contraception mandate violates the 1993 Religious Freedom Restoration Act, which prohibits the federal government from substantially burdening the exercise of religious convictions except by the “least restrictive means” to achieve a “compelling government interest.”
If this sounds familiar, that’s because the court used the law as the basis for a 2014 ruling that exempted devout owners of closely held for-profit businesses from having to provide birth control coverage to employees. Similar provisions had already been in place for strictly religious organizations such as churches.
But unlike with churches, there are no outright exemptions for faith-based nonprofits such as schools (like Geneva) or service orientations (like Catholic Charities or the Little Sisters’ home). The Department of Health and Human Services has allowed such nonprofits to opt out of the contraception mandate by submitting written notice. In those cases, the Affordable Care Act requires insurers to foot the bill to provide free, prescribed birth control to employees and students.
But Bishop Zubik and the other plaintiffs object because, they say, even submitting an opt-out notice makes them “complicit in a grave moral wrong,” enabling the birth control that is provided.
“We still have to sign off,” Bishop Zubik said in a telephone interview. “In reality, we’re giving the green light that says we’re agreeing that you can provide these services, and that raises the issue that we’re being asked to do something that goes against our faith.”
The Catholic petitioners object to artificial birth control in general, while the Protestant petitioners object to types of contraception that they contend could cause early abortions.
The U.S. Third Circuit Court of Appeals that last ruled on the Pittsburgh/Erie case sided with the government. Bishop Zubik appealed, and now the case is in the U.S. Supreme Court’s hands.
The government will argue Wednesday that the notifications are not burdensome and that the petitioners are mainly concerned about what happens after they submit them. Even if notification is burdensome, it is allowable because it is the least restrictive means of furthering the government’s compelling interest in protecting women’s health, the government argued in briefs filed by Solicitor General Donald B. Verrilli Jr. and seven other attorneys.
Attorneys for the other side have said there are less burdensome alternatives such as providing tax credits for contraceptives or allowing women to seek coverage through another government program.
Mr. Verrilli rejected those ideas because they would require women most in need of birth control to pay up front and to take steps to learn about and sign up for new government benefits.
“Those burdens would constitute a substantial barrier to full and equal health coverage for women,” Mr. Verrilli and his team argued in a court brief.
Bishop Zubik and other petitioners want religiously affiliated entities such as schools, hospitals and social service agencies to have the same exemptions as religious bodies themselves.
“The way the Affordable Care Act has been written is you can be recognized as a religion relative to what you do at worship, but when you take it outside your place of worship that’s something else,” he said.
He said the issue is about much more than birth control, and the ruling could affect many faiths including those that don’t object to contraception.
“People say it’s a Catholic issue, but it isn’t about that. It’s about religious freedom,” Bishop Zubik said. “It appears the government is saying … what you do in your synagogue or your mosque or your church is OK, but when you get out of your church that’s when the government begins to say you can’t have an exemption.”
Nicholas Cafardi, professor and former dean at the Duquesne University School of Law and a former general counsel for the Diocese of Pittsburgh, said the Obama administration could have been more accommodating of religious groups’ conscientious objection.
“It’s a shame it came to this,” he said. “It didn’t have to. There are other ways around this.”
This is the fourth challenge to the Affordable Care Act before the Supreme Court, but the first since the death of Antonin Scalia, one of the most conservative members of the bench.
Mr. Cafardi said that if the eight justices are evenly split on the case, they will have to wait for a ninth justice to settle the matter. Because different circuit courts of appeals have issued contradictory opinions, what’s legal in some states isn’t in others, under the same federal law.
“Courts don’t like results like that,” Mr. Cafardi said. “Judges like the law to make sense.”
There are other possible outcomes, said Aaron H. Caplan, professor at Loyola Law School Los Angeles.
“They can reschedule the argument for next year and say ‘Let’s just do this again when we have nine members,’ but I don’t know when they’re going to have nine members, so that’s not a very likely option,” Mr. Caplan said.
Senate Republicans are in the middle of a protracted fight with President Barack Obama, who last week nominated Merrick Garland for the vacancy. Republicans are refusing to hold a confirmation vote because they say Mr. Scalia’s replacement should be picked by the president voters will elect in November.
The justices also could dismiss the case as “improvidently granted,” pulling it from the docket before Wednesday’s argument by essentially saying that the court should not have agreed to hear it.
Post-Gazette religion writer Peter Smith contributed. Washington Bureau Chief Tracie Mauriello: firstname.lastname@example.org, 703-996-9292 or on Twitter @pgPoliTweets.
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