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Catholic activist questions challenge to health mandate

| Monday, Nov. 11, 2013, 11:41 p.m.

A prominent Catholic and longtime advocate for the needy said she doesn't understand why the Pittsburgh Roman Catholic diocese is spending money on lawsuits over health insurance instead of helping people get insurance.

“As an individual Catholic, that's what it looks like to me,” said Joyce Rothermel, one of the founders and former longtime CEO of the Greater Pittsburgh Community Food Bank.

A member of Catholics for Obama and the Association of Pittsburgh Priests, Rothermel said she can't speak for either progressive group, but she doesn't understand how any employer should be able to block its employees from accessing services that are legal.

“Personally, I don't agree with that,” she said. “Individuals have to be able to arrive at their own conclusions.”

The Pittsburgh diocese didn't return calls seeking comment. Paul Pohl, its lead attorney, declined comment.

The diocese said Bishop David Zubik on Tuesday would skip the first morning of a three-day meeting of the U.S. Conference of Catholic Bishops in Baltimore to testify in federal court, Downtown, about a regulation under the Affordable Care Act that would require Catholic agencies and institutions to either provide employees with contraceptives, abortion-inducing drugs and sterilization as part of insurance benefits or clear the way for third-party insurers to provide them.

Though unlikely, the case could allow other employers to challenge government mandates they don't like, one expert said.

The Pittsburgh and Erie dioceses are asking U.S. District Judge Arthur Schwab to block the government from enforcing the health care mandate while they pursue lawsuits claiming it violates the religious freedom of affiliated nonprofits, including Catholic Charities of Pittsburgh.

Other dioceses, churches and religious nonprofits across the country filed similar cases. The hearing marks the first time in any of the cases that plaintiffs and the government can call witnesses to testify about whether the mandate poses a “substantial burden” on their beliefs.

About 700,000 Catholics live in Allegheny, Beaver, Butler, Greene, Lawrence and Washington counties, the diocese said in court documents. Catholic Charities employs about 115 people.

Paul Titus, a Catholic and attorney, said he thinks the lawsuit turns the First Amendment “on its head” because having health insurance that includes contraceptive coverage doesn't infringe on his beliefs.

“They just have it wrong,” he said. “That doesn't involve any interference with the exercise of my religious beliefs. I don't have to get that prescription.”

Like Rothermel, he thinks the church is spending money on legal fees that should support social programs.

“It's just frustrating to see them do this,” Titus said.

The challenges are mainly made through the Religious Freedom Restoration Act, a 1993 law Congress passed after several court rulings reduced employers' ability to assert religious freedom under the First Amendment.

Although subsequent court rulings held the law unconstitutional when applied to state and local laws, it carries weight when it comes to federal laws such as the Affordable Care Act.

Ira C. Lupu, a retired George Washington University law professor who studies the law and religious liberty, said the diocesan challenges cover new territory.

“This is an entirely novel question in the law,” he said.

The government contends the burden is minimal because it requires Catholic Charities only to certify to its insurer that it doesn't want to provide coverage for contraceptives, sterilizations, abortion-inducing drugs and related counseling services.

The dioceses contend the burden is substantial because the nonprofit could be fined $100 per employee per day for failing to comply.

Though the government contends the notification is something Catholic Charities would do even without the mandate, because it wouldn't want its insurer providing the coverage, the diocese contends that having it play any role in providing the services would violate the organization's conscience because it would be “facilitating evil,” according to arguments Pohl made in another hearing.

Who gets to decide whether a burden is substantial “is a very big question that's lurking in these cases,” Lupu said.

The dioceses are arguing they have “an absolute right to define for ourselves what is a ‘substantial burden,'” he said.

If courts agree, that would give employers the ability to define almost any government mandate as a violation of the religious freedom law, he said.

On the other hand, if the government wants to argue that these services are so necessary to public health that they must be provided over the objections of employers, then they can make the case that the government should provide them instead of private insurers, Lupu said.

He believes odds favor the dioceses in their request for Schwab to impose a temporary injunction. Most federal judges who ruled on similar motions granted the injunctions. A major underpinning of those decisions is that the judges decided the plaintiffs likely would win their cases.

“They're saying it's 60-40 or better (that they will win),” Lupu said. “They don't get the injunction if it's 50-50.”

Brian Bowling is a Trib Total Media staff writer. Reach him at 412-325-4301 or bbowling@tribweb.com.

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