Pennsylvania dioceses win reprieve from Obamacare contraception mandate

A federal judge in Pittsburgh has temporarily blocked the Obama administration from enforcing the Affordable Care Act’s contraception insurance mandate against two Pennsylvania Catholic dioceses and their affiliates.

U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania entered a preliminary injunction in favor of the Catholic Dioceses of Pittsburgh and Erie in their lawsuits alleging the mandate constitutes a substantial burden on religious exercise in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.

(Westlaw users: Click here for more stories from Westlaw Journal Insurance Coverage.)

The injunction will allow both dioceses and their affiliated organizations to continue offering insurance to their employees that does not cover contraception, sterilization and abortion-inducing drugs while they continue to challenge the constitutionality of the mandate in court.

In his Nov. 21 ruling, Judge Schwab agreed with the dioceses that the mandate substantially burdens their right to freely exercise their religion, “specifically their right to not facilitate or initiate the provision of contraceptive products, services or counseling.”

(Click here to read the opinion on WestlawNext.)

Although the dioceses had filed separate lawsuits over the mandate, Judge Schwab addressed both cases in his ruling because they involve similar facts, the same attorneys and the same causes of action against the U.S. Department of Health and Human Services, he noted.

Religious employer exemption

Under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, employer insurance plans must offer coverage for the emergency contraceptive Plan B and other birth control products without copays.

The mandate includes a religious employer accommodation, which applies primarily to churches and other houses of worship.  Though the Pittsburgh and Erie dioceses fall under this accommodation, they allege their numerous charitable and educational entities will be forced to comply with the government mandate or else face fines of up to $100 per day per eligible employee starting Jan. 1.

As a result, some of the dioceses’ affiliates, including the Erie Catholic Preparatory School, will be required to comply with the mandate or face “steep fines,” according to the suit.

The mandate also divides the Catholic Church into two wings: a “worship wing” that includes houses of worship and religious orders, and a “charitable and educational wing” that provides what the government sees as secular services, according to the suits.

A house divided

Judge Schwab agreed with the dioceses that drawing a distinction between these two wings would result in a severing of the Catholic Church from its service mission.  In his ruling, he said the court is “constrained to understand” why all religious employers that share the same religious beliefs are not exempt from the mandate.

“Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or third-party administrators, when religious employers who operate the houses of worship do not?” Judge Schwab wrote.

If the mandate creates such a substantial burden on the dioceses’ exercise of religious so as to require a religious employer exemption, the mandate “obviously creates the same substantial burden on the nonprofit, religious affiliated/related organizations like plaintiffs … which implement the ‘good works’ of the dioceses,” Judge Schwab said.

In a statement Erie Bishop Lawrence T. Persico said he is “most grateful” for the judge’s ruling.

“Freedom of religion is about much more than worshipping at Mass on Sunday,” Persico said.  “We live out our faith through charitable and educational outreach.”

There is no indication yet whether HHS plans to appeal the preliminary injunction.

Zubik et al. v. Sebelius et al., No. 13-1459; Persico et al. v. Sebelius et al., No. 13-303, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013).