Lawsuit over federal mandate for contraception coverage settled after 5 years

Outcome expected after its reversal

The Diocese of Pittsburgh’s lawsuit challenging an Obamacare contraception mandate has been settled, Bishop David Zubik said Tuesday.

The outcome was expected after the Trump administration reversed the mandate earlier this month, but now it's official.

Lawyers for the diocese and the federal government filed joint motions for dismissal of the five-year-old lawsuit Monday in the U.S. Third Circuit Court of Appeals. Lawyers for the Catholic Diocese of Erie, which also challenged the mandate, also joined in the filing for dismissal.

Separately, the federal government also conceded in a similar challenge launched by Geneva College, a Presbyterian school in Beaver Falls, according to a filing in the Third Circuit. And the Catholic Diocese of Greensburg settled a similar challenge at the federal district court level.

Bishop Zubik had sued on behalf of Catholic Charities of Pittsburgh and was the lead plaintiff in a 2016 Supreme Court challenge that also included dozens of other religiously affiliated organizations.

The high court sent those cases back to the circuit court level for settlement talks.

On Oct. 6, the Trump administration announced it was rescinding mandates that required health plans for faith-based charities and schools to provide free contraceptives to women on their employee and student health plans. The new rules expanded the conscience protections to nonprofits and certain private businesses that claim a moral objection, regardless of whether it’s based on religion.

“This settlement restores religious freedom guaranteed by the First Amendment,” Bishop Zubik said in a statement. “Our litigation sought to re-establish the cornerstone principle that freedom of religion means freedom to practice our faith in daily life, not just in worship and prayer.

“On the other hand, this agreement does not prohibit the government from providing contraceptives. But it does prohibit the government and others from using church-related insurance plans as a conduit for such coverage.”

But the American Civil Liberties Union, which had filed a friend-of-the-court brief in favor of the mandate and has sued to prevent implementation of the new rules, lamented the policy change.

“Women shouldn't have to pay for their employers’ decisions not to cover contraception,” said Sara Rose, staff attorney for the ACLU of Pennsylvania. “Employees shouldn't be at the mercy of their employers' religious and moral beliefs when it comes to getting necessary health care.”

After the passage of the Affordable Care Act, the administration of former President Barack Obama had exempted strictly religious organizations, such as churches, from a requirement that women employees get free contraceptives as a preventive-care measure.

The Obama administration did require that female employees of faith-based schools and charities receive such contraceptives. It allowed employers to serve notice they were opting out of such coverage, in which case the insurance companies would supply them directly.

But Bishop Zubik, as well as other religious plaintiffs contended that even serving an opt-out notice would make them complicit in providing such contraceptives.

The five years of litigation amounted to a “long legal and spiritual battle,” the bishop said. Catholic plaintiffs cited their moral objections to artificial contraception in general. Some Protestant schools, such as Geneva, objected mainly to some forms of birth control that, they contended, also could cause early abortions.

Bishop Zubik said the diocese's stance does not mean women would be denied coverage for birth-control pills if they are prescribed for a medical reason other than contraception.

These can include such indications as hormonal imbalances or irregular periods. In such cases, a doctor would put a different insurance code on the prescription, and it would be covered by insurance like any other medication, according to the diocese.

He said the main issue was religious freedom and the right of faith groups not to be coerced into abetting activities they oppose. While other religious groups might not object to contraception, each one has principles they wouldn't want the government to force them to violate, he said.

“My argument from the beginning was, I did not want this to be the slippery slope that could have the government invade what has been a treasured part of our Constitution,” he said.

He acknowledged the possibility that, in polarizing times, a legal victory could be perceived as a defeat in the court of public opinion, given the widespread acceptance of contraception among even many Catholics.

“My concern is that in the world in which we live, where people have very little patience for understanding the other side, they would see this as a negative,” he said.

He hoped people would take the time to say, “I don’t agree with you, but I afford you the opportunity to do what you're doing in terms of having a passion for religious freedom.”