Diocese says government slow to offer ways to resolve impasse on mandate

IMAGE: CNS photo/Joshua Roberts, Reuters

By Ann Rodgers

PITTSBURGH (CNS) — The Pittsburgh
Diocese said Bishop David A. Zubik is making every effort to achieve a swift
negotiated solution to the diocese’s dispute with the federal government over
religious freedom in relation to the federal contraceptive mandate, as directed
by the U.S. Supreme Court.

“We have always been willing to
meet with representatives of the government to negotiate a mutually agreeable
solution to our impasse over religious freedom,” said a diocesan statement
issued Aug. 10.

In a May 16 unanimous decision
in Zubik v. Burwell, a
consolidated case of challenges to the contraceptive mandate filed by several
Catholic and other religious entities, the Supreme Court sent the case back to
lower courts, vacated earlier judgments against those parties opposing the
mandate, and encouraged the plaintiffs and the federal government to resolve
their differences.

Zubik v. Burwell involves the
Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of
Pittsburgh and Erie, the Archdiocese of Washington, and other Catholic and
faith-based entities challenging the Affordable Care Act’s mandate that most
religious and other employers must cover contraceptives, sterilization and
abortifacients through employer-provided health insurance — even if the
employers oppose the coverage on moral grounds. They see the mandate, issued by the Department of Health and Human Services, as a violation of their religious freedom.

“Zubik” in the case
name is Bishop Zubik, and “Burwell” is HHS Secretary Sylvia Mathews

The plaintiffs, who do not fit
the narrow exemption to the contraceptive mandate the government gives to
churches, argue that providing contraceptive coverage even indirectly through a
third party, as the Obama administration allows through what it calls an
accommodation, still violates their religious beliefs.

The government argues its
existing opt-out provision for these employers does not burden their free
exercise of religion.

“Our counsel and counsel for the
other Supreme Court litigants had a meeting with representatives of the
Department of Justice, at which we attempted to engage in the kind of
resolution talks that the Supreme Court intended in its order,” the Pittsburgh
Diocese said in its statement. “The government has been slow to offer anything
of substance to pursue a negotiated solution, except to mention openness to
future meetings.”

Bishop Zubik initiated the
lawsuit against the government on behalf of Catholic Charities of Pittsburgh,
arguing that it is a violation of religious freedom to force a religious
organization to facilitate access to anything that it teaches is immoral.

After Bishop Zubik won an
initial victory in the U.S. District Court in Pittsburgh in November 2013, the
case was appealed until it reached the Supreme Court this year.

In its May decision, the high courts
urged the lower courts to give the litigants time to find a negotiated
solution. The high court also affirmed that the diocese and the others could
not be fined during those negotiations.

However, the diocese has learned
that the Department of Justice is pressuring secular insurance companies that
have contracts with the diocese, and with other religious organizations, to
begin providing church employees with the objectionable coverage.

The Diocese of Pittsburgh, along
with several neighboring dioceses, is self-insured through the Catholic
Benefits Trust. Catholic Benefits Trust hires secular insurance companies to
handle the administration and claims for its plans.

Those companies have told the
diocese that they recently received letters from the Department of Justice
directing them to provide the disputed coverage at their own expense, said
Christopher Ponticello, general counsel of the Diocese of Pittsburgh.

“Since the Supreme Court issued
its ruling strongly directing that the parties negotiate a mutually agreeable
resolution to this matter, we have remained hopeful and open to those talks,”
told the Pittsburgh Catholic diocesan newspaper.

“It is discouraging to see this
aggressive action taken by the government,” he said. “We hope to prevail upon
the Department of Justice to stop this latest action without having to pursue
additional litigation. We have believed from the beginning that an agreement
could be reached that would allow the government to accomplish its goals
without involving the church in the process.”

The diocese has not paid
anything for its legal representation in Zubik v. Burwell. All costs associated
with the litigation have been donated by the legal firm of Jones Day.

Mickey Pohl, one of the Jones
Day attorneys who has been representing Bishop Zubik, the diocese, Catholic
Charities and other religious organizations in this litigation, said: “It is
extremely disappointing that the Department of Justice is trying to pressure
insurers to steamroll the religious objections of Catholics and other people of
faith who have been part of this litigation. It is also troublesome that these
assaults on freedom of religion have not been the subject of inquiry by the
mainstream media during this election cycle.”

The Aug. 10 statement from the
diocese said that “we are aware that the government has made an extremely
aggressive interpretation of the court’s order in the Zubik case and is
apparently trying to take over — to force our third-party administrators to
include the objectionable coverage in our self-insured plans.”

“We think that is
an erroneous reading of what the Supreme Court said,” it continued. “Furthermore, as the
government seems to acknowledge, because we are self-insured there is no obligation
or authority for the third-party administrator to provide the objectionable

If the fines for not
facilitating the coverage were imposed, Ponticello said, they would bankrupt
Catholic Charities of Pittsburgh. Each year that agency provides about $10
million in services, such as free medical and dental care, and support to
homeless women and veterans, to people of all faiths in southwestern

“The Supreme Court also made
clear that we cannot be fined or penalized for refusing to comply with the
government’s current regulations,” the statement said. “Therefore, we believe
the government’s position is wrong. In order to avoid future litigation, we
will try to work through these issues with our insurers, third-party administrators
and the government. Our counsel is actively working on this endeavor, and we
remain in prayer for a mutually agreeable solution.”

In late July, the Obama
administration opened a public-comment period seeking input on ways the
government can comply with religious employers’ refusal on moral grounds to
cover contraceptives for employees and at the same time make sure those
employees get such coverage.

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Rodgers is general manager of
the Pittsburgh Catholic, newspaper of the Diocese of Pittsburgh.

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