Pittsburgh Diocese files new lawsuit against health care mandate

Brian Bowling
| Tuesday, Oct. 8, 2013, 12:36 p.m.

The Roman Catholic Diocese of Pittsburgh mounted a new legal challenge to the federal health care mandate on Tuesday, arguing that the Obama administration's promise to accommodate objections from faith-based employers turned out to be “empty words.”

The mandate in the Affordable Care Act effectively says, “Religious freedom is only a freedom to worship, it's not a freedom to act on your beliefs,” said Robert P. Lockwood, director of communications for the diocese.

Bishop David Zubik, the diocese and its Catholic Charities filed a federal lawsuit asking U.S. District Judge Arthur Schwab to immediately block the government from enforcing the mandate, which goes into effect on Jan. 1. They also ask to be permanently exempted from it.

The mandate requires employers to provide health insurance coverage for contraception, abortion-inducing drugs, sterilization and related counseling services. The lawsuit claims the requirement would violate the diocese's rights under the First Amendment and the Religious Freedom Restoration Act, a 1993 law that increases protections on religious practices.

There was no answer at the media office for the Department of Health and Human Services and no response to an email sent to the office. Like other federal agencies, the department has cut staff and services during the federal government shutdown.

In effect, the mandate tries to draw a line between “houses of worship” and the charities and educational services they provide, Lockwood said.

“Our contention is that this is an artificial and dangerous distinction,” he said.

The diocese filed a similar lawsuit in 2012, but U.S. District Judge Terrence McVerry dismissed it because the government was responding to complaints and rewriting the regulation.

The administration promised to accommodate faith-based employers, who objected to providing coverage they oppose.

The administration's proposal to exempt religious employers by letting a third party provide the mandated coverage still violates the diocese's religious beliefs because the “organization's decision to offer a group health plan still results in the provision of coverage for abortion-inducing products, contraception, sterilization and related counseling,” the lawsuit states.

Lockwood said at least eight other dioceses, including the Erie diocese, and the archdioceses of New York, St. Louis and Washington, filed similar lawsuits since the government issued its final regulation in June.

The Pittsburgh diocese has a good chance of winning, said Ira C. Lupu, a retired George Washington University law professor and an expert in the law and religious liberty.

The diocese must prove under the Religious Freedom Restoration Act that the mandate poses a “substantial burden” to its religious liberty.

“That's what this case is going to come down to,” he said.

The government can argue that the diocese has avenues to reduce the burden, such as buying insurance instead of self-insuring and refusing to employ women who use the mandated services, Lupu said.

More than half of the federal judges who have ruled on similar challenges by for-profit corporations have agreed the mandate burdens their religious freedom. So it seems likely a judge would rule that the mandate burdens the diocese, he said.

The government then would have to convince the judge it has a “compelling interest” to impose that burden. That would be a tough argument because more than half the employers in the country are exempt from the mandate until they change health plans, Lupu said.

“I think the government is not going to be able to prove compelling interest,” Lupu said.

The church is pursuing its challenge through multiple lawsuits because no single entity is authorized to sue on behalf of them all, Lupu said.

Brian Bowling is a staff writer for Trib Total Media. He can be reached at 412-325-4301 or bbowling@tribweb.com.

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