Pittsburgh Post-Gazette

Jan. 1 deadline set for dioceses in birth control mandate fight

- By Rich Lord

A federal judge set the clock Thursday on a challenge by several Catholic organizati­ons to the Affordable Care Act’s birth control mandate, drafting a schedule tailored to avoid any emergency Christmas week appeals.

Organizati­ons affiliated with the Diocese of Pittsburgh and the Diocese of Erie face Jan. 1 deadlines to either provide health insurance coverage for birth control, sterilizat­ion and abortion-inducing drugs — or file statements of objection. Either way, they argue, they would be violating their religious principles.

“I need to hear and see the articulati­on of some of these issues, and the consequenc­es of those issues,” said U.S. District Judge Arthur J. Schwab, after hearing from attorneys for the dioceses and from the Department of Justice, which is defending the law. He said live testimony is needed “because I want to start judging some credibilit­y.”

He set a Nov. 12 date for a hearing with witnesses, which would set the stage for his decision, by early December, on whether groups such as Catholic Charities of the Diocese of Pittsburgh are subject to the birth control mandate. That would give the losing side time to appeal well before Jan. 1.

“The process you described, your honor, we’re thrilled with,” said attorney Paul Pohl, representi­ng both dioceses. “We think it’s right on.”

Attorney Brad Humphreys, for the Justice Department, seemed less thrilled, arguing that Judge Schwab should decide the issue solely from “the administra­tive record” describing how the rules were crafted.

The Diocese of Pittsburgh is self-insured through the Catholic Benefits Trust, which includes about 230 religious organizati­ons, including parishes, schools and two

other dioceses. Around 2,200 employees and 1,300 dependents are covered.

The act’s requiremen­t to cover birth control doesn’t bind churches but does apply to related nonprofit organizati­ons, such as Catholic Charities.

Those organizati­ons can fill out forms saying that they object to providing the coverage. Then, their insurer or insurance administra­tor must provide the coverage free of charge and can recoup any costs through the government-sponsored health insurance exchanges.

Mr. Pohl said that even sending in the form objecting to the coverage would violate his clients’ beliefs, because it would cause the insurer or administra­tor to provide birth control.

“You are doing affirmativ­e acts to provide [employees] with services that you find morally objectiona­ble,” said Mr. Pohl. His clients believe that could constitute “facilitati­ng or enabling evil,” he said.

Judge Schwab said he wants to explore whether “sending the form in” objecting to the coverage is legally different from paying for the coverage directly.

He said he also needs to know what happens if an organizati­on refuses to pay for the coverage and also declines to fill out the objection form. “If somebody refuses to send the paper, for religious purposes, who comes to assess the [$ 2,000 per employee, per year] fine?” he asked.

The court fight is one of dozens challengin­g the act nationally. Mr. Pohl said that his firm, Jones Day, is representi­ng 60 religious organizati­ons in 17 separate lawsuits challengin­g the act’s birth control mandate.

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